MODIFICATION AND REAFFIRMATION OF GUARANTY AND ENVIRONMENTAL INDEMNITY AGREEMENT
Exhibit
10.133
THIS
MODIFICATION AND REAFFIRMATION OF GUARANTY AND ENVIRONMENTAL INDEMNITY AGREEMENT
is
executed as of the 31st
day of
January, 2007, by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
having
an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and AMERICAN
LEISURE HOLDINGS, INC., a
Nevada
corporation (collectively, jointly and severally, the "Guarantor"), in favor
of
STANFORD
INTERNATIONAL BANK, LTD.,
having
an office at ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ (the
"Lender").
WITNESSETH,
THAT:
WHEREAS,
the
Lender has previously extended a $13,420,000.00 loan (hereinafter referred
to as
the “Existing Loan”), to ▇▇▇▇▇
CREEK ACQUISITION COMPANY, LLC, a
Florida
limited liability company (hereinafter referred to as “Borrower”),
and
WHEREAS,
the
Existing Loan is evidenced by a Second Renewal, Amended and Increased Promissory
Note dated December 22, 2006 in the amount of $13,420,000.00 and secured by:
(i)
that certain Mortgage and Security Agreement, recorded in Official Records
Book
2855, at Page 1243 (the “Mortgage”); (ii) an Assignment of Leases, Rents and
Profits, recorded
in Official Records Book 2855, Page 1280 (the “Assignment”); and (iii) a UCC-1
Financing Statement recorded in Official Records Book 2855, Page 1291 (the
“Financing Statement”); all of the foregoing modified by that certain Mortgage
Modification Agreement and Future Advance Certificate recorded in Official
Records Book 3034, at Page 2915, that certain Second Mortgage Modification
Agreement and Future Advance Certificate recorded in Official Records Book
3345,
at Page 2054, and that certain Third Mortgage Modification Agreement and Future
Advance Certificate dated December 22, 2006, all of the foregoing instruments
being filed amongst the Public Records of Osceola County, Florida; and (iv)
other loan documents executed in connection with the Existing Loan (the
“Existing Loan Documents”); and
WHEREAS,
the
Guarantor has previously guaranteed the prompt payment and performance of the
Existing Loan, pursuant to the terms that certain Unlimited Continuing and
Unconditional Guaranty executed by the Guarantor dated July 8, 2005 and as
modified and reaffirmed by that certain Modification and Reaffirmation of
Guaranty and Environmental Indemnity Agreement dated the 5th
day of
January, 2006 and that certain Modification and Reaffirmation of Guaranty and
Environmental Indemnity Agreement dated November 22, 2006 and that certain
Modification and Reaffirmation of Guaranty and Environmental Indemnity Agreement
dated December 22, 2006 (collectively, the “Guaranty”), and
WHEREAS,
the
Guarantor has previously agreed to indemnify and hold Lender harmless from
any
environmental damage, pursuant to the terms of that certain Environmental
Indemnity Agreement dated July 8, 2005 and as modified and reaffirmed by that
certain Modification and Reaffirmation of Guaranty and Environmental Indemnity
Agreement dated the 5th
day of
January, 2006, that certain Modification and Reaffirmation of Guaranty and
Environmental Indemnity Agreement dated the November 22, 2006, and that certain
Modification and Reaffirmation of Guaranty and Environmental Indemnity Agreement
dated the December 22, 2006 (collectively, the “Indemnity Agreement”) in
connection with the Existing Loan, and
WHEREAS,
the
Borrower has requested the Lender to modify the Existing Loan by granting an
$1,880,000.00 future advance so as to increase the Existing Loan to
$15,300,000.00 (the “New Loan”), and as a condition precedent to the
modification of the Existing Loan, the Lender has required the Guarantor to
modify and reaffirm the terms of the Guarantor’s Guaranty and Indemnity
Agreement with regard to the New Loan, and
WHEREAS,
under
the
New Loan the Borrower has executed certain documents modifying the Existing
Loan
Documents including but not limited to a Fourth Renewed, Amended and Increased
Promissory Note in the amount of $15,300,000.00, and a Fourth Mortgage
Modification Agreement and Future Advance Certificate,
collectively the “New Loan Documents”, and
WHEREAS,
the
Existing Loan as modified by the New Loan shall be referred to as the “Loan“,
and
WHEREAS,
the
Existing Loan Documents as modified by the New Loan Documents shall be
collectively referred to as the “Loan Documents”, and
WHEREAS,
it
is in
the best interests of the Guarantor to facilitate the modification of the
Existing Loan and the Lender to make the New Loan and the resulting Loan,
and
NOW,
THEREFORE, for
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Lender to modify the Existing Loan and to make
the New Loan and the resulting Loan, the Guarantor agrees as
follows:
1. Recitals:
The
Guarantor acknowledges that each of the foregoing recitals is true and correct.
The foregoing recitals are hereby incorporated into this Agreement and made
a
material part hereof by this express reference.
2. Reaffirmation
of Guaranty:
The
Guarantor hereby reaffirms, re-acknowledges and ratifies each and every of
the
terms, representations, warranties, covenants and conditions of the Guaranty,
and agrees to remain bound thereby. Guarantor agrees that all loans or financial
accommodations currently being extended, renewed or modified by the Lender
to
the Borrower shall remain encompassed by the Guaranty, and hereby reaffirms
and
ratifies the terms of the Guaranty with respect to each such loan or financial
accommodation, including, without limitation, the Loan and the Loan
Documents.
3. Reaffirmation
of Indemnity Agreement:
The
Guarantor hereby reaffirms, re-acknowledges and ratifies each and every of
the
terms, representations, warrants, covenants and conditions of the Indemnity
Agreement, and agrees to remain bound thereby. Guarantor agrees that all loans
or financial accommodations currently being extended, renewed or modified by
the
Lender to the Borrower shall remain encompassed by the Indemnity Agreement,
and
hereby reaffirms and ratifies the terms of the Indemnity Agreement with respect
to each such loan or financial accommodation, including, without limitation,
the
Loan and the Loan Documents.
4. No
Defenses, Counterclaims Or Setoffs:
The
Guarantor acknowledges that as of the date of this Agreement, the Guarantor
has
no defenses, counterclaims or claims to rights of offset with respect to the
repayment of any obligations or indebtedness owed by the Borrower to the Lender
or the Guarantor’s obligations under the Guaranty or Indemnity Agreement,
including, without limitation, the Loan and the Loan Documents, or with respect
to the validity and enforceability of any collateral or security interests
held
by the Lender in connection with the Loan and/or as evidenced or secured by
the
Loan Documents.
5. No
Release:
The
Guarantor acknowledges and agrees that no action taken by the Lender subsequent
to the date hereof shall affect, impair or diminish the Guarantor’s obligations
under the Guaranty or the Indemnity Agreement.
6. Reliance:
The
Guarantor acknowledges that the Lender is relying upon this Modification and
Reaffirmation of Guaranty and Environmental Indemnity Agreement in agreeing
to
modify the Existing Loan and to make the Loan to the Borrower, and the Guarantor
intends that the Lender shall rely upon this Modification and Reaffirmation
of
Guaranty and Environmental Indemnity Agreement. The Guarantor certifies to
the
Lender that the Guarantor is affiliated or associated with the Borrower such
that the Loan extended by the Lender to the Borrower shall inure to the benefit
of the Guarantor, and constitute sufficient consideration for the Guarantor’s
execution of this Agreement.
IN
WITNESS WHEREOF, the
Guarantor has caused this instrument to be duly executed as of the day and
year
written above.
WITNESS:
GUARANTOR:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇ /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
a
Nevada
corporation
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇ By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, its CEO
______________________________
STATE
OF
FLORIDA
COUNTY
OF Orange_______
I
HEREBY CERTIFY
that the
foregoing instrument was acknowledged before me this 2ndday
of
February, 2007, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who is personally known to me or have
produced driver's licenses issued by the Department of Highway Safety and Motor
Vehicles as identification and did [did not] take an oath.
/s/
▇▇
▇▇▇▇▇▇
Print
Name: ▇▇ ▇▇▇▇▇▇
NOTARY
PUBLIC, State of Florida
Serial
No: DD459074
My
Commission Expires: 8/12/09
STATE
OF
FLORIDA
COUNTY
OF
Orange_______
I
HEREBY CERTIFY
that the
foregoing instrument was acknowledged before me this 2nd day of
February, 2007, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as CEO of American Leisure
Holdings, Inc., a Nevada corporation, on behalf of the corporation who is
personally known to me or have produced driver's licenses issued by the
Department of Highway Safety and Motor Vehicles as identification and did [did
not] take an oath.
/s/
▇▇
▇▇▇▇▇▇
Print
Name: ▇▇ ▇▇▇▇▇▇
NOTARY
PUBLIC, State of Florida
Serial
No: DD459074
My
Commission Expires: 8/12/09