EXHIBIT 10.19(c)


 


AMENDED AND RESTATED
GUARANTY


 


THIS AMENDED AND RESTATED GUARANTY (this “Guaranty”)
is made and entered into by ORLEANS HOMEBUILDERS, INC., a Delaware corporation
(“Guarantor”), for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association (“Agent”), as agent for each of the Lenders (as defined
below) that are party to the Loan Agreement referred to and defined below.


 


BACKGROUND


 


A.                                   Pursuant
to that certain Amended and Restated Revolving Credit Loan Agreement dated as
of December 22, 2004 (the “Original Loan Agreement”), executed by
Greenwood Financial, Inc. (“Master Borrower”), certain affiliates of
Master Borrower as Borrowers, the Lenders party thereto from time to time (“Lenders”)
and Agent, such Lenders agreed to provide a credit facility to Borrowers on the
terms and conditions contained in the Original Loan Agreement to finance
Borrowers’ acquisition of residential real estate and construction activities.


 


B.                                     In
connection with the Original Loan Agreement Guarantor executed and delivered to
Agent that certain Guaranty dated December 22, 2004, for the benefit of
Lenders (the “Original Guaranty”) guarantying the Obligations as such term is
defined in the Original Guaranty);


 


C.                                     Master
Borrower, Borrowers, the Lenders and Agent amended and restated the Original
Loan Agreement pursuant to that certain Amended and Restated Revolving Credit
Loan Agreement dated January 24, 2006 (the “First Amended and Restated
Loan Agreement”);


 


D.                                    In
connection with the Existing Loan Agreement, Guarantor executed and delivered
that certain Guaranty dated January 24, 2006, for the benefit of Lenders
(as amended prior to the date hereof, the “January 2006 Guaranty,” and
collectively with the Original Guaranty hereafter referred to as the “Existing
Guaranties”) guarantying the Obligations as such term is defined in the January 2006
Guaranty;


 


E.                                      Master
Borrower, Borrowers, the Lenders and Agent have since amended the First Amended
and Restated Loan Agreement pursuant to that certain First Amendment dated as
of November 11, 2006 (the “First Amendment”), that certain Second
Amendment dated as of February 7, 2007 (the “Second Amendment”), that
certain Third Amendment dated as of May 8, 2007 (the “Third Amendment”),
that certain Fourth Amendment dated as of September 6, 2007 (the “Fourth
Amendment”), and that certain Fifth Amendment dated as of December 21,
2007 (the “Fifth Amendment”);


 


F.                                      Collectively,
the First Amended and Restated Loan Agreement, the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment
are hereafter referred to as the “Existing Loan Agreement”;


 

















 


G.                                     Master
Borrower, Borrowers and Lenders are amending and restating the Existing Loan
Agreement on the terms and conditions set forth in that certain Second Amended
and Restated Revolving Credit Loan Agreement of even date herewith (the “Second
Amended and Restated Loan Agreement,” and collectively with the Existing Loan
Agreement hereafter referred to as the “Loan Agreement”);


 


H.                                    As
a condition to Lenders agreeing to the terms and conditions of the Second
Amended and Restated Loan Agreement, Lenders are requiring Guarantor to execute
and deliver this Guaranty to continue its guaranty of the Obligations (as
hereafter define) and to continue to secure its guaranty thereof with a first
priority lien on all of its deposit accounts held at a Lender as provided for
herein, pursuant to that certain Security Agreement of even date herewith among
Master Borrower, Affiliate Grantors (as defined therein) and Agent for each of
the Lenders and in the Loan Documents;


 


NOW, THEREFORE, intending to be legally bound and
primarily liable therefore, and to induce Lenders to make or continue to make
Loans to or for the benefit of Master Borrower and Borrowers or in respect of
which Master Borrower or Borrower are, may be or may become liable to Lenders under
any of the Loan Documents, Guarantor hereby agrees that the Existing Guaranties
are hereby amended and restated as follows:


 


1.                    OBLIGORS.  The “Obligors” means Master Borrower, and
each of the other Borrower entities from time to time party to the Loan
Agreement.  Capitalized terms used but
not defined herein shall have the respective meanings ascribed to them in the Second
Amended and Restated Loan Agreement.


 


2.                    OBLIGATIONS.  The “Obligations” means all existing and
hereafter incurred or arising Indebtedness, whether absolute or contingent,
direct or indirect, including without limitation all interest, expenses, costs
(including collection costs) and fees (including reasonable attorney’s fees and
prepayment fees) incurred, arising or accruing (whether prior or subsequent to
the filing of any bankruptcy petition by or against any Obligor) under or in
connection with any of the foregoing.  If
the term “Obligor” includes more than one person or entity, the Obligations
shall include all Obligations of any one or more of such persons or entities,
whether such Obligations are individual, joint, several or joint and several.


 


3.                    UNCONDITIONAL
GUARANTY.  In consideration of the
existing Obligations, Guarantor, intending to be legally bound, absolutely and
unconditionally guaranties and is surety to Lenders for the payment,
performance and satisfaction when due (whether by stated maturity, demand,
acceleration or otherwise) of all Obligations. 
The obligations of Guarantor hereunder shall continue in full force and
effect irrespective of the validity, legality or enforceability of any
agreements, notes or documents pursuant to which any of the Obligations arise,
or the existence, value or condition of any collateral for any of the
Obligations, or of any other guaranty of the Obligations, or any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.


 


4.                    COST OF
ENFORCEMENT.  Guarantor agrees to pay
Agent and Lenders all costs and expenses (including reasonable attorney’s fees)
at any time incurred by Lenders in the enforcement of this Guaranty against
Guarantor.


 


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5.                    PAYMENT BY
GUARANTOR.  Payment by Guarantor is due
upon demand by Agent and is payable in immediately available funds in lawful
money of the United States of America.


 


6.                    CONTINUING
GUARANTY.  This Guaranty shall continue
in full force and effect with respect to Guarantor until all Obligations have
been paid, performed and satisfied in full.


 


7.                    WAIVERS AND
CONSENTS BY GUARANTOR.  Guarantor
unconditionally consents to, and waives as a defense to liability hereunder,
each of the following:  (a) any
waiver, inaction, delay or lack of diligence by Agent or Lenders in enforcing
their rights against any Obligor or in any property, or the unenforceability of
any such rights, including any failure to perfect, protect or preserve any lien
or security interest which may be intended directly or indirectly to secure any
of the Obligations, and the absence of notice thereof to Guarantor, (b) the
absence of any notice of the incurrence or existence of any Obligation, (c) any
action, and the absence of notice thereof to Guarantor, taken by Agent or
Lenders or any Obligor with respect to any of the Obligations, including any
release, subordination or substitution of any collateral or release,
termination, compromise, modification or amendment of any instrument executed
by or applicable to any Obligor or of any claim, right or remedy against any
Obligor or any property, (d) any impairment of Guarantor’s right to
reimbursement by way of subrogation, indemnification or contribution, (e) any
other action taken or omitted by Agent and Lenders in good faith with respect
to the Obligations, (f) the absence or inadequacy of any formalities of
every kind in connection with enforcement of the Obligations, including
presentment, demand, notice and protest, and (g) the waiver of any rights
of Agent and Lenders under or any action taken or omitted by Agent or Lenders
with respect to any other guaranty of the Obligations.


 


8.                    OTHER
AGREEMENTS BY GUARANTOR.  Guarantor
agrees that there shall be no requirement that Lenders document their
acceptance of this Guaranty, evidence its reliance thereon, or that Lenders
take any action against any person or any property prior to taking action
against Guarantor.  Guarantor further
agrees that Lenders’ rights and remedies hereunder shall not be impaired or
subject to any stay, suspension or other delay as a result of any Obligor’s
insolvency or as a result of any proceeding applicable to any Obligor or any
Obligor’s property under any bankruptcy or insolvency law.  Guarantor also agrees that payments and other
reductions on the Obligations may be applied to such of the Obligations and in
such order as Lenders may elect.


 


9.                    SUBROGATION
AND SIMILAR RIGHTS.  Guarantor will not
exercise any rights with respect to Lenders or any Obligor related to or
acquired in connection with or as a result of its making of this Guaranty which
it may acquire by way of subrogation, indemnification or contribution, by
reason of payment made by it hereunder or otherwise, until after the date on
which all of the Obligations shall have been satisfied in full, and until such
time any such rights against Borrowers shall be fully subordinate in lien and
payment to any claim in connection with the Obligations which Lenders now or
hereafter have against any Obligor.  If
any amount shall be paid to Guarantor on account of such subrogation,
indemnification or contribution at any time when all of the Obligations and all
other expenses guaranteed pursuant hereto shall not have been paid in full,
such amount shall be held in trust for the benefit of Lenders, shall be
segregated from the other funds of Guarantor and shall forthwith be paid over 


 


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to Agent
to be applied in whole or in part by Lenders against the Obligations, whether matured
or unmatured, in such order as the Lenders shall determine in their discretion
pursuant to the Loan Agreement.  If
Guarantor shall make payment to Agent or Lenders of all or any portion of the
Obligations and all of the Obligations shall be paid in full, Guarantor’s right
of subrogation shall be without recourse to and without any implied warranties
by Agent or Lenders and shall remain fully subject and subordinate to Lenders’
right to collect any other amounts which may thereafter become due to Lenders
by the Borrowers in connection with the Obligations.


 


10.              REINSTATEMENT OF
LIABILITY.  If any claim is made upon the
Agent or Lenders for repayment or recovery of any amount or amounts received by
Agent or Lenders in payment or on account of any Obligations and Lenders repay
all or part of said amount by reason of (a) any judgment, decree or order
of any court or administrative body having jurisdiction over the Lenders or any
of their property, or (b) any settlement or compromise in good faith with
any such claimant (including Obligor), then and in such event Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be
binding upon Guarantor, notwithstanding any termination hereof or the
cancellation of any note or other instrument evidencing any Obligation, and
Guarantor shall remain liable to the Lenders hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by Lenders.


 


11.              SECURITY INTEREST.
Guarantor hereby grants to each Lender a security interest in any deposit
account of Guarantor and any other account of Guarantor and any balance of
assets in any such account, in each case in or with such Lender whenever and so
long as any of the Obligations shall be outstanding and unpaid and agrees that
the security interest hereby granted shall be independent of the right of
setoff, but the application of any proceeds thereof shall be governed by the
Loan Agreement.


 


12.              EFFECT OF OTHER
AGREEMENTS.  The provisions of this
Guaranty are cumulative and concurrent with Agent’s and Lenders’ rights and
remedies against Guarantor under any existing or future agreement pertaining to
or evidencing any of the Obligations.  No
such additional agreement shall be deemed a modification or waiver hereof
unless expressly so agreed by Lenders in writing in accordance with the Loan
Agreement.  If Agent or Lenders hold any
other guaranty or surety agreement applicable to any of the Obligations, the liability
of Guarantor hereunder shall be joint and several with each party obligated on
such other guaranty or surety agreement, unless otherwise agreed by Lenders in
writing in accordance with the Loan Agreement.


 


13.              NOTICES.  All notices given under this Guaranty shall
be given in the manner to the addresses set forth in the Loan Agreement.


 


14.              REPRESENTATIONS,
WARRANTIES AND COVENANTS.


 


14.1        Guarantor hereby makes for the benefit of Lenders each of the
representations and warranties made in the Loan Agreement by Master Borrower
and Borrowers with regard to Guarantor and incorporates such representations
and warranties herein by reference, including, without limitation, as to its
assets, financial condition, operations, organization, legal status, and
business.  Guarantor further represents
and warrants that no consent, approval, order or authorization of, or
registration or filing with, any third party is 


 


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required
in connection with the execution, delivery and carrying out of this Guaranty or,
if required, has been obtained, and this Guaranty has been duly authorized,
executed and delivered so that it constitutes the legal, valid and binding
obligation of Guarantor, enforceable in accordance with its terms.


 


14.2        Guarantor agrees that, so long as any part of the
Obligations shall remain unpaid, Guarantor will, perform or observe, all of the
terms, covenants and agreements in the Loan Documents that Guarantor is
required or obligated to perform or observe or that Borrowers are required to
cause Guarantor to perform or observe.


 


15.              EXISTING GUARANTIES;
NO NOVATION.  This Guaranty supersedes,
amends and restates in full, the Existing Guaranties and all prior amendments
thereof.  The Obligations referred to herein
includes all of the Obligations outstanding pursuant to the Existing Guaranties
immediately prior to the execution of this Guaranty, and the parties
acknowledge and agree that this Guaranty is not intended to, nor shall it,
constitute a novation.  Guarantor
acknowledges and agrees that all references to the Guarantor in any Loan
Document heretofore executed by Guarantor, Master Borrower or any Borrower
shall mean and refer to the Existing Guaranties, as amended and restated by
this Guaranty.


 


16.              MISCELLANEOUS.


 


16.1        No amendment of any provision
of this Guaranty shall be effective unless it is in writing and signed by
Guarantor and Agent and has been approved by Lenders in accordance with the
provisions of the Loan Agreement.  No
waiver of any provisions of this Guaranty, and no waiver or consent to any
departure by Guarantor therefrom, shall be effective unless it is in writing
and signed by Agent after receipt of Lenders’ approval in accordance with the
provisions of the Loan Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.


 


16.2        Any provision of this
Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.


 


16.3        The obligations of
Guarantor hereunder shall not be subject to any counterclaim, setoff, deduction
or defense based upon any related or unrelated claim which Guarantor may now or
hereafter have against Agent or any Lender or any Obligor, except payment of
the Obligations, and shall not be affected by any change in any Obligor’s legal
status or ownership or by any change in corporate, partnership or other
organizational structure applicable to any Obligor.


 


16.4        This Guaranty shall (i) be
binding on Guarantor and its successors and assigns, and (ii) inure,
together with all rights and remedies of Agent and Lenders hereunder, to the
benefit of Agent and Lenders and their respective successors, transferees and
assigns.  Notwithstanding the foregoing
clause (i), none of the rights or obligations of Guarantor hereunder may be
assigned or otherwise transferred.


 


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16.5        This Guaranty shall be
governed by and construed in accordance with the internal laws, and not the law
of conflicts, of the Commonwealth of Pennsylvania.


 


17.              CONSENT TO
JURISDICTION AND VENUE.   IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE
RELATIONSHIP EVIDENCED HEREBY, GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN OR SERVING
BUCKS OR PHILADELPHIA COUNTIES IN THE COMMONWEALTH OF PENNSYLVANIA AND AGREES
NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING
OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY.  GUARANTOR AGREES THAT SERVICE OF PROCESS IN
ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY
THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO GUARANTOR.


 


18.              WAIVER OF JURY
TRIAL.  GUARANTOR HEREBY WAIVES, AND
AGENT AND LENDERS BY THEIR ACCEPTANCE HEREOF HEREBY WAIVE, TRIAL BY JURY IN ANY
LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED
TO THIS GUARANTY OR THE 

RELATIONSHIP EVIDENCED HEREBY.  THIS
PROVISION IS A MATERIAL INDUCEMENT FOR AGENT AND LENDERS TO ENTER INTO, ACCEPT
OR RELY UPON THIS GUARANTY.


 


[Signature on the
following page]


 


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IN WITNESS WHEREOF, Guarantor has executed this
Guaranty as of this 29th day of September, 2008.


 


	
   

  	
  ORLEANS HOMEBUILDERS, INC., a

  
	
   

  	
  Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Garry P. Herdler

  
	
   

  	
  Name:

  	
  Garry
  P. Herdler

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President and

  	
   

  
	
   

  	
   

  	
  Chief Financial Officer