**Exhibit10.54****AMENDED AND RESTATED GUARANTY AGREEMENT**     **THIS AMENDED AND RESTATED GUARANTY AGREEMENT**(this “Guaranty”)is made as of the                      day of December 2006, by **COMSTOCKHOMEBUILDING COMPANIES, INC.,**a Delaware corporation (the “ Guarantor”) in favor of **BANKOF AMERICA, N.A.,**a national banking association (the “Lender”), and its successors andassigns.**RECITALS****:**     WHEREAS, pursuant to the terms of that certain Revolving Master Loan Agreement datedas of January 16, 2004, by and between Lender and Parker Chandler Homes, Inc., a Georgiacorporation (“PC, Inc.”) (as the same may be amended, renewed, supplemented or restatedfrom time to time, the “Loan Agreement”), Lender made a loan (the “Loan”) to PC, Inc. inthe original maximum principal amount of Seven Million Five Hundred Thousand and No/100Dollars ($7,500,000.00), as evidenced by that certain Real Estate Note dated January 16,2004 made by PC, inc. payable to the order of Lender (as the same may be amended, renewed,supplemented or restated from time to time, the “Note”); and     WHEREAS, pursuant to the terms of the Loan Agreement, the Loan is comprised of (i) arevolving construction loan in the maximum principal amount of Five Million Five Hundredand No/100 Dollars ($5,500,000.00) (the “Revolving Facility”) and (ii) a lot acquisitionloan in the maximum principal amount of Two Million and No/100 Dollars ($2,000,000.00)(the “Acquisition Facility”).     WHEREAS, pursuant to the terms of a certain modification to the Loan dated February16, 2005, the principal amount of the Loan was increased to a maximum principal amount ofTen Million and No/100 Dollars ($10,000,000.00) whereby the Revolving Facility wasincreased to a maximum principal amount of Eight Million and No/100 Dollars ($8,000,000.00)and the maximum principal amount of the Acquisition Facility remained Two Million andNo/100 Dollars ($2,000,000.00).     WHEREAS, pursuant to the terms of a certain Amendment to Promissory Note and OtherLoan Documents dated July 1, 2005, by and between PC, Inc., Parker-Chandler Homes SouthCarolina, LLC, a South Carolina limited liability company (“PC South”) and Lender, PCSouth was added as a Borrower under the Loan.     WHEREAS, PC, Inc. is now known as Comstock Homes of Atlanta, LLC, a Georgia limitedliability company (“Comstock Atlanta”) and PC South is now known as Comstock Homes ofMyrtle Beach, LLC (“Myrtle”) (Comstock Atlanta, PC, Inc., PC South and Myrtle arehereinafter collectively referred to as “Borrower”).     WHEREAS, Borrower’s obligations under the Note are secured by, among other things, aDeed to Secure Debt and Security Agreement dated as of January 16, 2004, from Borrower forthe benefit of Lender, and originally recorded among the land records of Jackson County,Georgia in the Superior Court of Jackson County, Georgia on February 4, 2004 in Deed Book331 Page 369 (as the same may be amended, renewed, supplemented or restated from time totime and as the same, as amended, has been subsequently recorded in the land records ofJackson County, the “Deed to Secure”), covering certain real property andimprovementsthereon located in Jackson County Georgia and Paulding County, Georgia andmoreparticularly described therein and on Exhibit A attached hereto (collectively, the“Property”); and
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     **WHEREAS,**Borrower’s Obligations under the Note are guaranteed by Guarantor pursuantto a Guaranty Agreement dated February 10, 2006 (the “Original Guaranty”) which guaranteesthe Loan together with certain other Loans made by Lender (the “Other Guaranteed Loans”);and     **WHEREAS,**at the request of the Borrower, the Lender has agreed to modify the Loan to(i) extend the Maturity Date of the Loan; (ii) modify the maximum principal amount of theLoan; and (iii) make certain other changes to the Loan Documents as set forth herein (the“Modification”),     **WHEREAS,**in consideration of Lender entering into the Modification, and because someof Other Guaranteed Loans have been satisfied in full, the Guarantor has agreed to executea new Guaranty Agreement simultaneously with the execution of the Modification.     **WHEREAS**,it is intended that this Guaranty extend to the Loan and all other amountsowing under any of the Loan Documents, without any need for any notice to the Guarantor ofthe making of advances under the Loan and without any need for any supplements oramendments to this Guaranty or any other documentation to be executed by the Guarantor; and     **WHEREAS,**unless otherwise defined herein, all capitalized terms used herein shallhave the meanings assigned to them in the Loan Agreement.**WITNESSETH:**     For good and valuable consideration, the receipt and adequacy of which are herebyacknowledged, and as a material inducement to the Lender to enter into the Modificationwith the Borrower, the Guarantor hereby amends and restates the Original Guaranty asfollows:     **1. ****Guaranty of Payment****.**The Guarantor hereby unconditionally andirrevocablyguarantees to the Lender the punctual payment when due, whether by scheduled payment date,upon maturity, lapse of time, by acceleration of maturity, or otherwise, and at all timesthereafter, of all principal, interest (including interest accruing after the commencementof any bankruptcy or insolvency proceeding by or against the Borrower, whether or notallowed in such proceeding), fees, late charges, costs, expenses, indemnificationindebtedness (including, without limitation, indemnification for environmental matters),and other sums of money now or hereafter due and owing pursuant to (a) the terms of theNote, the Loan Agreement, the Deed to Secure and any and all other Loan Documents, now orhereafter existing, and specifically including any and ail advances made by the Lenderunder the Loan Documents from sources other than the Loan, and interest on such advances,and (b) all renewals, extensions, increases, refinancing, modifications, supplements oramendments to such indebtedness, or any of the Loan Documents, or any part thereof (suchindebtedness being hereinafter collectively called the “Indebtedness”). This Guarantycovers all amounts outstanding under the Loan (the “Indebtedness”), whether presentlyoutstanding or arising subsequent to the date hereof, whether or not presentlycontemplated by the Guarantor, the Borrower or the Lender,and whether or not the same shall be incurred after satisfaction, payment or reduction ofany previous indebtedness, including all amounts advanced and/or readvanced by the Lenderin stages or installments. The guaranty of the Guarantor as set forth in this Section isa continuing guaranty of payment and not a guaranty of collection.
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     **2. ****Guarantyof Performance**. The Guarantor additionally hereby unconditionallyand irrevocably guarantees to the Lender the timely performance of all other obligationsof the Borrower under all of the Loan Documents, including without limitation, completionof the improvements and compliance with all covenants regarding environmental matters.     **3. ****Primary Liability of the Guarantor****.**This Guaranty is an absolute,irrevocable and unconditional guaranty of payment and performance. The Guarantor shall beliable for the payment and performance of the Obligations, as set forth in this Guaranty,as a primary obligor. This Guaranty shall be effective as a waiver of, and the Guarantorhereby expressly waives any and all rights to which the Guarantor may otherwise have beenentitled under any suretyship laws in effect from time to time, including any right orprivilege, whether existing under statute, at law or in equity, to require the Lender totake prior recourse or proceedings against any collateral, security or Person (hereinafterdefined) whatsoever. Upon the occurrence of: (i) any Default under the Loan, (ii) anyreasonable determination by the Lender that a material adverse change has occurred in thefinancial condition of the Guarantor, (iii) the dissolution or insolvency of Guarantor,subject to the provisions of Section 4 below, or (iv) any transfer of assets of Guarantorwithout receiving fair value in exchange therefor, the Indebtedness shall be deemedimmediately due and payable at the election of the Lender, and the Guarantor shall, ondemand and without presentment, protest, any notice whatsoever, pay the amount due thereonto the Lender or perform or observe the agreement, covenant, term or condition, as thecase may be, and it shall not be necessary for the Lender, in order to enforce suchpayment or performance by Guarantor, first to institute suit or pursue or exhaust anyrights or remedies against the Borrower or others liable on the Obligations or for suchperformance, or to institute suit or pursue or exhaust any rights or remedies against theBorrower or Guarantor or other sureties of the Obligations as contemplated by applicablelaw or to enforce any rights against any security that shall ever have been given tosecure the Obligations, or to join the Borrower or any others liable for the payment orperformance of the Obligations or any part thereof in any action to enforce this Guaranty,or to resort to any other means of obtaining payment or performance of the Obligations.The term “Person” as used herein shall mean all of the Borrower and the Guarantor.     **4. ****Representations, Warranties, and Covenants of the Guarantor**. Guarantorhereby represents, warrants, and covenants that: (a) Guarantor will derive substantialbenefit, directly or indirectly, from Lender entering into the Modification with theBorrower and from the making of this Guaranty by the Guarantor; (b) this Guaranty is dulyauthorized and valid, and is binding upon and enforceable against the Guarantor; (c) theGuarantor is not, and the execution, delivery and performance by the Guarantor of thisGuaranty will not cause the Guarantor to be, in violation of or in default with respect toany law; (d) Guarantor is a duly organized, validly existing corporation in good standingunder the state of Delaware, is lawfully doing business in the jurisdiction where itoperates, and has full power and authority to enter into and perform this Guaranty; (e)except as may have been disclosed in public filings, there is not now pending against oraffecting the Guarantor, nor, to the knowledge of the Guarantor, is there threatened, anyaction, investigation, suit or proceeding by or before any administrative agency whichif adversely determined would materially impair or affect the Guarantor’s financialcondition
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(f) all financial statements and information heretofore furnished to theLender by the Guarantor do, and all financial statements and information hereafter furnishedto the Lender by the Guarantor will, fully and accurately present the financial condition ofthe Guarantor as oftheir dates and the results of the Guarantor’s operations for the periods therein specified, and,since the date of the most recent financial statements of the Guarantor heretofore furnished to theLender, except as heretofore disclosed in public filings, the Guarantor has not incurred anymaterial liability, direct or indirect, fixed or contingent; (g) after giving effect to thisGuaranty, the Guarantor is solvent, is not engaged or about to engage in business or a transactionfor which the property of the Guarantor is an unreasonably small capital, and does not intend toincur or believes that it will incur debts that will be beyond its ability to pay as such debtsmature; (h) the Lender has no duty at any time to investigate or inform the Guarantor of thefinancial or business condition or affairs of the Borrower or any change therein, and the Guarantorwill keep fully appraised of the Borrower’s financial and business condition; (i) the Guarantoracknowledges and agrees that the Guarantor may be required to pay and perform the Obligations infull without assistance or support from the Borrower or any other Person; and (j) the Guarantor hasread and fully understand the provisions contained in the Loan Agreement, the Deed to Secure, andthe other Loan Documents, each of which may be modified, extended, supplemented or extended fromtime to time without notice to or consent from the Guarantor and without affecting the obligationsof the Guarantor under this Guaranty.     The Guarantor’s representations, warranties and covenants are a material inducement to theLender to enter into the other Loan Documents and shall survive the execution hereof and anybankruptcy, foreclosure, transfer of security or other event affecting the Borrower, theGuarantor, any other party, or any security for all or any part of the Obligations.**     5.****Financial information**. The Guarantor shall furnish or cause to be furnished tothe Lender upon request any financial statements for Guarantor and any entity related to theGuarantor containing such information and in such form as Lender may from time to time reasonablydetermine, provided the obligations of the Guarantor hereunder have not already terminated.          Without limiting the generality of the foregoing, the Guarantor shall furnish to the Lenderfinancial statements as follows:          (a) as soon as available, but in no event later than ninety (90) days after the close of itsfiscal year (but in no event earlier than the date such financial statements must be submitted togovernmental authorities), financial statements (all of which financial statements may include, asrequested by the Lender, a balance sheet, income statement, sources and uses of funds for suchfiscal and/or calendar year, projected sources and uses of funds for the coming year, detailedlisting and description of all contingent liabilities, tax returns, written verification ofliquidity and such other supporting schedules and documentation which the Lender may request). Allsuch financial statements shall be audited by a certified public accountant acceptable to theLender in all respects; and          (b) if requested by the Lender, within forty-five (45) days after the close of its quarterlybusiness period (but in no event earlier than the date such financial statements must be submittedto governmental authorities), the financial statements to be filed with applicable governmentalauthorities.     **6. ****Certain Agreements and Waivers by the Guarantor****.**          (a) The Guarantor hereby agrees that neither the Lender’s rights or remedies nor theObligations shall be released, diminished, impaired, reduced or affected by any one or more of thefollowing events, actions, facts, or circumstances, and the liability of the Guarantor under thisGuaranty shall be absolute and unconditional irrespective of:
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     (i) any limitation of liability or recourse in any other Loan Document orarising under any law;     (ii) any claim or defense that this Guaranty was made without considerationor is not supported by adequate consideration;     (iii) the taking or accepting of any other security or guaranty for, or rightof recourse with respect to, any or all of the Obligations;     (iv) any homestead exemption or other exemption under applicable law;     (v) any release, surrender, abandonment, exchange, alteration, sale or otherdisposition, subordination, deterioration, waste, failure to protect or preserve,impairment, or loss of, or any failure to create or perfect any lien or securityinterest with respect to, or any other dealings with, any collateral or securityat any time existing or purported, believed or expected to exist in connectionwith any or all of the Obligations, including any impairment of the Guarantor’srecourse against any Person or collateral;     (vi) whether express or by any operation of law, any full or partial releaseof the liability of the Guarantor, the Borrower or any other party hereunder orunder any of the other Loan Documents;     (vii) the death, insolvency, bankruptcy, disability, dissolution,liquidation, termination, receivership, reorganization, merger, consolidation,change of form, structure or ownership, sale of all assets, or lack of corporate,partnership or other power of the Borrower, the Guarantor or any other party atany time liable for thepayment or performance of any or all of the Obligations;     (viii) either with or without notice to or consent of the Guarantor, anyrenewal, extension, modification or rearrangement of the terms of any or all of theObligations and/or any of the Loan Documents, including, without limitation,material alterations of the terms of payment (including changes in maturitydate(s), interest rate(s) and amortization) or performance or any other termsthereof, or any waiver, termination, or release of, or consent to departure from,any of the Loan Documents or any other guaranty of any or all of the Obligations,or any adjustment, indulgence, forbearance, or compromise that may be granted fromtime to time by the Lender to the Borrower, the Guarantor, and/or any other Personat any time liable for the payment or performance of any or all of the Obligations;     (ix) any neglect, lack of diligence, delay, omission, failure, or refusal ofthe Lender to take or prosecute (or in taking or prosecuting) any action for thecollection or enforcement of any of the Obligations, or to foreclose or take orprosecute any action to foreclose (or in foreclosing or taking or prosecuting anyaction to foreclose) upon any security therefor, or to exercise (or in exercising)any other right or power with respect to any security therefor, or to take orprosecute (or in taking or prosecuting) any action in connection with any LoanDocument, or any failure to sell or otherwise dispose of in a commerciallyreasonable manner any collateral securing any or all of the Obligations;     (x) any failure of the Lender to notify the Guarantor of any creation,renewal, extension, rearrangement, modification, supplement, subordination, orassignment of the Obligations or any part thereof, or of any Loan Document, or ofany release of or change in any security, or of any other action taken or refrainedfrom being taken by theLender against the Borrower or any security or other recourse, or of any newagreement between the Lender and the Borrower, it being understood that the Lendershall not be required to give the Guarantor any notice of any kind under anycircumstances with respect to or in connection with the Obligations,any and allrights to notice that the Guarantor may have otherwise had being hereby waived bythe Guarantor;
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     (xi) any refund of any payment by the Borrower or any other party liable forthe payment or performance of any or all of the Obligations;     (xii) the existence of any claim, set-off, or other right that the Guarantormay at any time have against the Borrower, the Lender (other than pursuant to afinal judgment), or any other Person, whether or not arising in connection withthis Guaranty or any other Loan Document;     (xiii) the unenforceability of all or any part of the Obligations against theBorrower, whether because the Obligations exceed the amount permitted by law orviolate any usury law, or because the act of creating the Obligations, or any partthereof, is beyond the scope of powers granted, or because the officers or Personscreating same acted in excess of their authority, or because of a lack of validityor enforceability of or defect or deficiency in any of the Loan Documents, orbecause the Borrower has any valid defense, claim or offset with respect thereto,or because the Borrower’s obligation ceases to exist by operation of law, orbecause of any other reason or circumstance, it being agreed that the Guarantorshall remain liable hereunder regardless of whether the Borrower or any otherPerson are found not liable on the Obligations, or any part thereof, for any reason(and regardless of any joinder of the Borrower or any other party in any action toobtain payment or performance of any or all of the Obligations);     (xiv) any order, ruling or plan of reorganization emanating from proceedingsunder Title 11 of the United States Code with respect to the Borrower or any otherPerson, including any extension, reduction, composition, or other alteration of theObligations, whether or not consented to by the Lender; or     (xv) any failure to notify the Guarantor of, or obtain the Guarantor’s consentto, the making of the Loan or any advances thereunder.     (b) In the event that any payment by the Borrower or any other Person to the Lenderis held to constitute a preference, fraudulent transfer or other voidable payment underany bankruptcy, insolvency or similar law, or if for any other reason the Lender isrequired to refund such payment or pay the amount thereof to any other party, such paymentby the Borrower or any other party to the Lender shall not constitute a release of theGuarantor from any liability hereunder, and this Guaranty shall continue to be effectiveor shall be reinstated (notwithstanding any prior release, surrender or discharge by theLender of this Guaranty or of the Guarantor), as the case may be, with respect to, andthis Guaranty shall apply to, any and all amounts so refunded by the Lender or paid by theLender to another Person (which amounts shall constitute part of the Obligations), and anyinterest paid by the Lender and any reasonable attorneys’ fees, costs and expenses paid orincurred by the Lender in connection with any such event. It is the intent of theGuarantor and the Lender that the obligations and liabilities of the Guarantor hereunderare absolute and unconditional under any and all circumstances and that until theObligations are fully and finally paid and performed, and not subject to refund ordisgorgement, the obligations and liabilities of the Guarantor hereunder shall not bedischarged or released, In whole or in part, by any act or occurrence that might, but forthe provisions of this Guaranty, be deemed a legal or equitable discharge or release ofany of the Guarantorexcept as otherwise setforth herein.
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The Lender shall be entitled to continue tohold this Guaranty in its possession for a period of one year from the date the Obligationsare paid and performed in full and for so long thereafter as may be necessary to enforceany obligation of the Guarantor hereunder and/or to exercise any right or remedy of theLender hereunder.          (c) If acceleration of the time for payment of any amount payable by the Borrowerunder the Note or any other Loan Document is stayed or delayed by any law or tribunal, allsuch amounts shall nonetheless be payable by the Guarantor on demand by the Lender.     **7. ****Waiver of Trial by Jury; Consent to Jurisdiction****. WITHOUTINTENDING INANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE” (FOR PURPOSES OF THISSECTION, AS DEFINED IN THE “DISPUTE RESOLUTION” SECTION) AS SET FORTH IN THIS NOTE,AGREEMENT, OR GUARANTY, AS APPLICABLE, TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TOARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOTARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, BORROWER AND LENDER WAIVE TRIAL BY JURY INRESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON SUCH “DISPUTE,” THIS WAIVER IS KNOWINGLY,WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND LENDER, AND BORROWER AND LENDER HEREBYREPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON ORENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITSEFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE LOANDOCUMENTS. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTIONIN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. BORROWER FURTHERREPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE,AGREEMENT, OR GUARANTY, AS APPLICABLE, AND IN THE MAKING OF THIS WAIVER BY INDEPENDENTLEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSELSELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVERWITH COUNSEL.**          The Guarantor irrevocably submits to the nonexclusive jurisdiction of any state orfederal court sitting in the Jurisdiction of Choice over any suit, action or proceedingarising out of, or relating to, this Guaranty, and irrevocably agrees that all claims inrespect of such action or proceeding may be heard and determined in such state or federalcourt. The Guarantor irrevocably waives, to the fullest extent permitted by law, anyobjection that the Guarantor may now or hereafter have to the laying of venue of any suchsuit, action or proceeding brought in any such court, and any claims that any such suit,action or proceeding is brought in an inconvenient forum. Final judgment in any such suit,action or proceeding brought in any such court shall be conclusive and binding upon theGuarantor and may be enforced in any court in which the Guarantor are subject tojurisdiction, by a suit upon such judgment provided that service of process is effectedupon the Guarantor as provided in the Loan Documents or as otherwise permitted byapplicable law.
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     **8.****Dispute Resolution****.**     (a) Arbitration. Except to the extent expressly provided below, anyDispute shall, upon the request of either party, be determined by binding arbitration inaccordance with theFederal Arbitration Act, Title 9, United States Code (or if not applicable, theapplicable statelaw), the then-current rules for arbitration of financial services disputes of theAmerican Arbitration Association or any successor thereof (“AAA”) and the “Special Rules”set forth below. “Dispute” means any controversy, claim or dispute between or among theparties to this Note, Agreement, or Guaranty, as applicable, including any controversy,claim or dispute arising out of or relating to (a) this Note, Agreement, or Guaranty, asapplicable, (b) any other Loan Documents, (c) any related agreements or instruments, or(d) the transaction contemplated herein or therein (including any claim based on orarising from an alleged personal injury or business tort), in the event of anyinconsistency, the Special Rules shall control. The filing of a court action is notintended to constitute a waiver of the right of Borrower or Lender, including the suingparty, thereafter to require submittal of the Dispute to arbitration. Any party to thisNote, Agreement, or Guaranty, as applicable, may bring an action, including a summary orexpedited proceeding, to compel arbitration of any Dispute in any court havingjurisdiction over such action. For the purposes of this Dispute Resolution Section only,the terms “party” and “parties” shall include any parent corporation, subsidiary oraffiliate of Lender involved in the servicing, management or administration of anyobligation described in or evidenced by this Note, Agreement, or Guaranty, as applicable,together with the officers, employees, successors and assigns of each of the foregoing.     (b) Special Rules.     (i) The arbitration shall be conducted in any U.S. state where real ortangiblepersonal property collateral is located, or if there is no such collateral, in theCity and County where Lender is located pursuant to its address for noticepurposes in this Note, Agreement, or Guaranty, as applicable.     (ii) The arbitration shall be administered by AAA, who will appoint anarbitrator. If AAA is unwilling or unable to administer or legally precluded fromadministering the arbitration, or if AAA is unwilling or unable to enforce orlegally precluded from enforcing any and all provisions of this Dispute ResolutionSection, the any party to this Note, Agreement, or Guaranty, as applicable, maysubstitute another arbitration organization that has similar procedures to AAA andthat will observe and enforce any and all provisions of this Dispute ResolutionSection. All Disputes shall be determined by one arbitrator; however, if the amountin controversy in a Dispute exceeds Five Million Dollars ($5,000,000), upon therequest of any party, the Dispute shall be decided by three arbitrators (forpurposes of this Note, Agreement, or Guaranty, as applicable, referred tocollectively as the “arbitrator”).     (iii) All arbitration hearings will be commenced within ninety (90) days ofthe demand for arbitration and completed within ninety (90) days from the date ofcommencement; provided, however, that upon a showing of good cause, the arbitratorshall be permitted to extend the commencement of such hearing for up to anadditional sixty (60) days.     (iv) The judgment and the award, if any, of the arbitrator shall be issuedwithin thirty (30) days of the close of the hearing. The arbitrator shall provide aconcise written statement setting forth the reasons for the judgment and for theaward, if any. The arbitration award, if any, may be submitted to any court havingjurisdiction to be confirmed and enforced, and such confirmation and enforcementshall not be subject to arbitration.     (v) The arbitrator will give effect to statutes of limitations and any waiversthereof in determining the disposition of any Dispute and may dismiss one or moreclaims in the arbitration on the basis that such claim or claims is or are barred.
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Forpurposes of the application of the statute of limitations, the service on AAA underapplicable AAA rules of a notice of Dispute is the equivalent of the filing of a lawsuit.     (vi) Any dispute concerning this arbitration provision, including any such dispute asto the validity or enforceability of this provision, or whether a Dispute is arbitrable,shall be determined by the arbitrator; provided, however, that the arbitrator shall not bepermitted to vary the express provisions of these Special Rules or the Reservations ofRights in subsection (c) below.     (vii) The arbitrator shall have the power to award legal fees and costs pursuant tothe terms of this Note, Agreement, or Guaranty, as applicable,     (viii) The arbitration will take place on an individual basis without reference to,resort to, or consideration of any form of class or class action.     (c) Reservations of Rights. Nothing in this Note, Agreement, or Guaranty, asapplicable, shall be deemed to (i) limit the applicability of any otherwise applicable statutes oflimitation and any waivers contained in this Note, Agreement, or Guaranty, as applicable, or (ii)apply to or limit the right of Lender (A) to exercise self help remedies such as (but not limitedto) setoff, or (B) to foreclose judicially or nonjudicially against any real or personal propertycollateral, or to exercise judicial or nonjudicial power of sale rights, (C) to obtain from acourt provisional or ancillary remedies such as (but not limited to) injunctive relief, writ ofpossession, prejudgment attachment, or the appointment of a receiver, or (D) to pursue rightsagainst a party to this Note, Agreement, or Guaranty, as applicable, in a third-party proceedingin any action brought against Lender in a state, federal or international court, tribunal orhearing body (including actions in specialty courts, such as bankruptcy and patent courts). Lendermay exercise the rights set forth in clauses (A) through (D), inclusive, before, during or afterthe pendency of any arbitration proceeding brought pursuant to this Note, Agreement, or Guaranty,as applicable. Neither the exercise of self help remedies nor the institution or maintenance of anaction for foreclosure or provisional or ancillary remedies shall constitute a waiver of the rightof any party, including the claimant in any such action, to arbitrate the merits of the Disputeoccasioning resort to such remedies. No provision in the Loan Documents regarding submission tojurisdiction and/or venue in any court is intended or shall be construed to be in derogation ofthe provisions in any Loan Document for arbitration of any Dispute.     (d) Conflicting Provisions for Dispute Resolution. If there is any conflict betweenthe terms, conditions and provisions of this Section and those of any other provision or agreementfor arbitration or dispute resolution, the terms, conditions and provisions of this Section shallprevail as to any Dispute arising out of or relating to (i) this Note, Agreement, or Guaranty, asapplicable, (ii) any other Loan Document, (iii) any related agreements or instruments, or (iv) thetransaction contemplated herein or therein (including any claim based on or arising from analleged personal injury or business tort). In any other situation, if the resolution of a givenDispute is specifically governed by another provision or agreement for arbitration or disputeresolution, the other provision or agreement shall prevail with respect to said Dispute.     (e) Jury Trial Waiver in Arbitration. By agreeing to this Section, the partiesirrevocably and voluntarily waive any right they may have to a trial by jury in respect of anyDispute.     **9.****Attorneys’ Fees and Costs of Collection**. The Guarantor shall pay on demandall attorneys’ fees and all other costs and expenses incurred by the Lender in the enforcement ofor preservation of the Lender’s rights under this Guaranty. The Guarantor’s obligations andliabilities under this Section 9 shall survive any payment or discharge in full of theObligations.
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     **10. ****Term of Guaranty****.**This Guaranty shall continue in effect until such timeas the Obligations have been fully and finally paid and performed, except that, andnotwithstanding any return of this Guaranty to the Guarantor, this Guaranty shall continuein effect (a) with respect to any of the Obligations that survive after expiration ortermination of the Loan, (b) with respect to all obligations and liabilities of theGuarantor for indemnification and for the payment of all costs and expenses, as providedherein, and (c) as provided herein with respect to preferential, fraudulent or othervoidable payments or other transfers.     **11. ****Subordination****.**If, for any reason whatsoever, the Borrower is now orhereafter becomes indebted to the Guarantor:          (a) such indebtedness and all interest thereon and all liens, security interests andrights now or hereafter existing with respect to property of the Borrower securing sameshall, at all times, be subordinate in all respects to the Obligations and to all liens,security interests and rights now or hereafter existing to secure the Obligations; and          (b) The Guarantor shall not be entitled to enforce or receive payment, directly orindirectly, of any such indebtedness of the Borrower to the Guarantor until theObligations have been fully and finally paid and performed. Notwithstanding the foregoing,the Guarantor may receive payments upon close-out of any Project with regard to loans madeby the Guarantor to the owner of any such Project, or with regard to loans made toBorrower on behalf of the owner of any such Project. Notwithstanding the foregoing, theGuarantor may receive payments from Borrower in the form of salaries or shareholder ormember dividends.     **12. ****Subrogation****.**Notwithstanding anything to the contrary contained herein(a) the Guarantor shall not have any right of subrogation in or under any of the LoanDocuments or to participate in any way therein, or in any right, title or interest in andto any security or right of recourse for the Indebtedness, until the later of the date onwhich the Indebtedness has been fully and finally paid, or the Loan has expired or beenterminated, and (b) if the Guarantor is or becomes an “insider” (as defined in Section 101of the United States Bankruptcy Code) with respect to the Borrower, then the Guarantorhereby irrevocably and absolutely waives any and all rights of contribution,indemnification, reimbursement or any similar rights against the Borrower with respect tothis Guaranty (including any right of subrogation, except to the extent of collateral heldby the Lender), whether such rights arise under an express or implied contract or byoperation of law. It is the intention of the parties that the Guarantor shall not bedeemed to be a “creditor” (as defined in Section 101 of the United States Bankruptcy Code)of the Borrower by reason of the existence of this Guaranty in the event that the Borroweror the Guarantor becomes a debtor in any proceeding under the United States Bankruptcycode.     **13. ****Notices****.**Unless specifically provided otherwise, any notice for purposesof this Guaranty shall be given in writing or by telecopier transmission and shall beaddressed or delivered to the respective addresses set forth at the end of this Guaranty,or to such other address as may have been previously designated by the intended recipientby notice given in accordance with this Section. If sent by prepaid, registered orcertified mail (return receipt requested), the notice shall be deemed effective when thereceipt is signed or when the attempted initial delivery is refused or cannot be madebecause of a change in address of which the sending party has not been notified; and iftransmitted by telecopier or personal delivery, the notice shall be effective whenreceived. No notice of change of address shall be effective except upon actual receipt.     **14.****Cumulative Rights****.**The exercise by the Lender of any right orremedyhereunder or under any other Loan Document, or at law or in equity, shall not preclude theconcurrent or subsequent exercise of any other right or remedy.
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The Lendershall have all rights, remedies and recourses afforded to the Lender by reason of thisGuaranty or any other Loan Document or by law or equity or otherwise, and the same shall becumulative and concurrent and are intended to be, and shall be, nonexclusive. No waiver ofany default on the part of the Guarantor or of any breach of any of the provisions of thisGuaranty or of any other document shall be considered a waiver of any other or subsequentdefault or breach, and no delay or omission in exercising or enforcing the rights andpowers granted herein or in any other document shall be construed as a waiver of suchrights and powers, and no exercise or enforcement of any rights or powers hereunder orunder any other document shall be held to exhaust such rights and powers, and every suchright and power may be exercised from time to time. No provision of this Guaranty or anyright, remedy or recourse of the Lender with respect hereto, or any default or breach, canbe waived, nor can this Guaranty or the Guarantor be released or discharged in any way orto any extent, except specifically in each case by a writing intended for that purpose (andwhich refers specifically to this Guaranty) executed, and delivered to the Guarantor, bythe Lender, except as otherwise provided herein.     **15. ****Disclosure of Information****.**The Lender may sell or offer to sell the Loanor an interest in the Loan to one or more assignees or participants and may disclose toany such assignee or participant or prospective assignee or participant any informationthe Lender has pertaining to the Loan, the Obligations, this Guaranty, or the Guarantor.The Lender also may disclose any such information to any regulatory body havingjurisdiction over the Lender and to any agent or attorney of the Lender and in such othercircumstances and to such other parties as necessary or appropriate in the Lender’sreasonable judgment.     **16. ****Governing Law; Forum****.**This Guaranty is an agreement executed under seal,and its validity, enforcement, and interpretation, shall for all purposes be governed byand construed in accordance with the laws of the state of Georgia **[CONFIRM]** and applicableUnited States federal law, and is intended to be performed in accordance with, and only tothe extent permitted by, such laws. If the Guarantor is a corporation, the designation“(SEAL)” on this Guaranty shall be effective as the affixing of Guarantor’s corporate sealphysically to this Guaranty. All obligations of the Guarantor hereunder are payable andperformable at the place or places where the Obligations are payable and performable. TheGuarantor hereby irrevocably submits generally and unconditionally for the Guarantor andin respect of the Guarantor respective property to the jurisdiction of any state court,or any United States federal court, sitting in the state in which any of the Land islocated, over any suit, action or proceeding arising out of or relating to this Guarantyor the Obligations. The Guarantor hereby irrevocably waives, to the fullest extentpermitted by law, any objection that the Guarantor may now or hereafter have to the layingof venue in any such court and any claim that any such court is an inconvenient forum.     **17. ****Counterparts****.**This Guaranty may be executed in multiple counterparts,each of which, for all purposes, shall be deemed an original, and all of which togethershall constitute one and the same agreement.     **18. ****Miscellaneous****.**This Guaranty embodies the entire agreement between theLender and the Guarantor with respect to the guaranty by the Guarantor of the Obligations.This Guaranty supersedes all prior agreements and understandings, if any, with respect toguaranty by the Guarantor of the Obligations. This Guaranty may not be modified, amendedor superseded except in a writing signed by the Lender and the Guarantor referencing thisGuaranty by its date and specifically identifying the portions hereof that are to bemodified, amended or superseded. This Guaranty is binding not only on the Guarantor, butalso on the Guarantor’s heirs, personal representatives, successors and assigns. If anyprovision of this Guaranty or the application thereof to any Person or circumstance shall,for any reason and to
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any extent, be declared to be invalid or unenforceable, neither the remainingprovisions of this Guaranty nor the application of such provision to any other Person orcircumstance shall be affected thereby, and the remaining provisions of this Guaranty, orthe applicability of such provision to other Persons or circumstances, as applicable,shall remain in effect and beenforceable to the maximum extent permitted by applicable law.     **19. ****Original Guaranty****.**Guarantor acknowledges that this Guaranty is given insubstitution for, and amends, modifies and restates, and as amended, modified andrestated, replaces the Original Guaranty. It is expressly understood and agreed that thisGuaranty is given in replacement of the Original Guaranty, and that no obligations orliabilities evidenced by the Original Guaranty shall be discharged, cancelled or impairedby the execution and delivery of this Agreement. To the extent any of the terms of theOriginal Guaranty and this Guaranty conflict, the terms of this Guaranty will govern.**[SIGNATURES ON THE FOLLOWING PAGE]**
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     **IN WITNESS WHEREOF**, the Guarantor duly executed and delivered thisGuaranty, intending that it be an instrument under seal, as of the date firstwritten above.       WITNESS: GUARANTOR:           COMSTOCK HOMEBUILDING COMPANIES,