**Exhibit10.52****AMENDED AND RESTATED GUARANTY AGREEMENT**     **THISAMENDED 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 **BANK OFAMERICA, N.A.,** a national banking association (the “Lender”), and its successors and assigns.**R   E   C   I   T   A   L   S:**     **WHEREAS,**pursuant to the terms of a certain Land Acquisition and Development Agreement datedas of May 2, 2005, by and between Highland Avenue Properties, LLC, a Georgia limited liabilitycompany (the “Borrower”) and Lender (as the same may be amended, renewed, supplemented or restatedfrom time to time, the “Loan Agreement”), Lender made a loan (the “Loan”) to Borrower in theoriginal maximum principal amount of Four Million Eight Hundred Fifty One Thousand Two HundredThirty-Five and No/100 Dollars ($4,851,235.00), as evidenced by that certain Promissory Note datedMay 2, 2005 made by Borrower payable to the order of Lender (as the same may be amended, renewed,supplemented or restated from time to time, the “Note”); and     **WHEREAS,**Borrower’s obligations under the Note are secured by, among other things, a Deed toSecure Debt and Security Agreement dated as of May 2, 2005, from Borrower for the benefit ofLender, and recorded among the land records of Fulton County, Georgia in the Superior Court ofFulton County, Georgia on May 4, 2005 in Deed Book 39924 Page 32 (as the same may be amended,renewed, supplemented or restated from time to time, the “Deed to Secure”), coveringcertain real property and improvements thereon located in Fulton County Georgia and moreparticularly described therein and on Exhibit A attached hereto (collectively, the“Property”); and     **WHEREAS,**Borrower’s obligations under the Note and the other Loan Documents (hereinafterdefined) including, but not limited to, the prompt and full payment and performance of theIndebtedness and the other obligations in connection with the Loan as are hereinafter collectivelycalled the “Obligations”; the Note, the Deed to Secure, the Loan Agreement and all otherdocuments previously, now or hereafter executed and delivered to evidence, secure, guarantee, orin connection with, the Obligations, as the same may from time to time be renewed, extended,amended, supplemented or restated, are hereinafter collectively called the “LoanDocuments”; and all liens, security interests, assignments, superior titles, rights, remedies,powers, equities and priorities securing the Note or providing recourse to Lender with respectthereto are hereinafter collectively called the“Liens”; and     **WHEREAS,**Borrower’s Obligations under the Note are guaranteed by Guarantor pursuant to aGuaranty Agreement dated February 10, 2006 (the “Original Guaranty”) which guarantees theLoan together with certain other Loans made by Lender (the “Other Guaranteed Loans”); and     **WHEREAS,**Borrower has requested that Lender agree to modify the Loan to (i) modify certainpayment terms of the Loan; and (ii) make certain other changes to the Loan Documents as set forthin a certain Loan Modification Agreement of even date herewith (the“Modification”).
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     **WHEREAS,**in consideration of Lender entering into the Modification, and because some of OtherGuaranteed Loans have been satisfied in full, the Guarantor has agreed to execute a new GuarantyAgreement simultaneously with the execution of the Modification.     **WHEREAS,**it is intended that this Guaranty extend to the Loan and all other amounts owingunder any of the Loan Documents, without any need for any notice to the Guarantor of the making ofadvances under the Loan and without any need for any supplements or amendments to this Guaranty orany other documentation to be executed by the Guarantor; and     **WHEREAS,**unless otherwise defined herein, all capitalized terms used herein shall have themeanings assigned to them in the Loan Agreement.**W I T N E S S E T H:**     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 Modification with theBorrower, the Guarantor hereby amends and restates the Original Guaranty as follows:     **1. ****Guaranty of Payment.** The Guarantor hereby unconditionally and irrevocablyguarantees to the Lender the punctual payment when due, whether by scheduled payment date, uponmaturity, lapse of time, by acceleration of maturity, or otherwise, and at all times thereafter, ofall principal, interest (including interest accruing after the commencement of any bankruptcy orinsolvency proceeding by or against the Borrower, whether or not allowed in such proceeding), fees,late charges, costs, expenses, indemnification indebtedness (including, without limitation,indemnification for environmental matters), and other sums of money now or hereafter due and owingpursuant to (a) the terms of the Note, the Loan Agreement, the Deed to Secure and any and all otherLoan Documents, now or hereafter existing, and specifically including any and all advances made bythe Lender under the Loan Documents from sources other than the Loan, and interest on suchadvances, and (b) all renewals, extensions, increases, refinancings, modifications, supplementsor amendments to such indebtedness, or any of the Loan Documents, or any part thereof (suchindebtedness being hereinafter collectively called the “Indebtedness”). This Guaranty covers allamounts outstanding under the Loan (the “Indebtedness”), whether presently outstanding or arisingsubsequent to the date hereof, whether or not presently contemplated by the Guarantor, the Borroweror the Lender, and whether or not the same shall be incurred after satisfaction, payment orreduction of any previous Indebtedness, including all amounts advanced and/or readvanced by theLender in 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.     **2. ****Guaranty of Performance.** The Guarantor additionally hereby unconditionally andirrevocably guarantees to the Lender the timely performance of all other obligations of theBorrower under all of the Loan Documents, including without limitation, completion of theImprovements and compliance with all covenants regarding environmental matters.     **3. ****Primary Liability of the Guarantor.** This Guaranty is an absolute, irrevocable andunconditional guaranty of payment and performance. The Guarantor shall be liable for the paymentand performance of the Obligations, as set forth in this Guaranty, as a primary obligor.
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This Guaranty shall be effective as a waiver of, and the Guarantor hereby expressly waives any andall rights to which the Guarantor may otherwise have been entitled under any suretyship laws ineffect from time to time, including any right or privilege, whether existing under statute, at lawor in equity, to require the Lender to take prior recourse or proceedings against any collateral,security or Person (hereinafter defined) whatsoever. Upon the occurrence of: (i) any Default underthe Loan, (ii) any reasonable determination by the Lender that a material adverse change hasoccurred in the financial condition of the Guarantor, (iii) the dissolution or insolvency ofGuarantor, subject to the provisions of Section 4 below, or (iv) any transfer of assets ofGuarantor without receiving fair value in exchange therefor, the Indebtedness shall be deemedimmediately due and payable at the election of the Lender, and the Guarantor shall, on demand andwithout presentment, protest, any notice whatsoever, pay the amount due thereon to the Lender orperform or observe the agreement, covenant, term or condition, as the case may be, and it shall notbe necessary for the Lender, in order to enforce such payment or performance by Guarantor, first toinstitute suit or pursue or exhaust any rights or remedies against the Borrower or others liable onthe Obligations or for such performance, or to institute suit or pursue or exhaust any rights orremedies against the Borrower or Guarantor or other sureties of the Obligations as contemplated byapplicable law 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 or performanceof the Obligations or any part thereof in any action to enforce this Guaranty, or to resort to anyother means of obtaining payment or performance of the Obligations. The term “Person” as usedherein shall mean all of the Borrower and the Guarantor.     **4. ****Representations, Warranties, and Covenants of the Guarantor.** Guarantor herebyrepresents, warrants, and covenants that: (a) Guarantor will derive substantial benefit, directlyor indirectly, from Lender entering into the Modification with the Borrower and from the making ofthis Guaranty by the Guarantor; (b) this Guaranty is duly authorized and valid, and is bindingupon and enforceable against the Guarantor; (c) the Guarantor is not, and the execution, deliveryand performance by the Guarantor of this Guaranty will not cause the Guarantor to be, in violationof or in default with respect to any law; (d) Guarantor is a duly organized, validly existingcorporation in good standing under the state of Delaware, is lawfully doing business in thejurisdiction where it operates, and has full power and authority to enter into and perform thisGuaranty; (e) except as may have been disclosed in public filings, there is not now pendingagainst or affecting the Guarantor, nor, to the knowledge of the Guarantor, is there threatened,any action, investigation, suit or proceeding by or before any administrative agency which ifadversely determined would materially impair or affect the Guarantor’s financial condition (f) allfinancial statements and information heretofore furnished to the Lender by the Guarantor do, andall financial statements and information hereafter furnished to the Lender by the Guarantor will,fully and accurately present the financial condition of the Guarantor as of their dates and theresults of the Guarantor’s operations for the periods therein specified, and, since the date ofthe most recent financial statements of the Guarantor heretofore furnished to the Lender, exceptas heretofore disclosed in public filings, the Guarantor has not incurred any material liability,direct or indirect, fixed or contingent; (g) after giving effect to this Guaranty, the Guarantoris solvent, is not engaged or about to engage in business or a transaction for which the propertyof the Guarantor is an unreasonably small capital, and does not intend to incur or believes thatit will incur debts that will be beyond its ability to pay as such debts mature; (h) the Lenderhas no duty at any time to investigate or inform the Guarantor of the financial or businesscondition or affairs of the Borrower or any change therein, and the Guarantor will keep fullyappraised of the Borrower’s financial and business condition; (i) the Guarantor acknowledges andagrees that the Guarantor may be required to pay and perform the Obligations in full withoutassistance or support from the Borrower or any other Person; and (j) the Guarantor has read andfully understand the provisions contained in the Loan Agreement,
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the Deed to Secure, and the other Loan Documents, each of which may be modified, extended,supplemented or extended from time to time without notice to or consent from the Guarantor andwithout affecting the obligations of 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, the Guarantor,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 to theLender upon request any financial statements for Guarantor and any entity related to the Guarantorcontaining such information and in such form as Lender may from time to time reasonably determine,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).All such 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:     (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 consideration or isnot supported by adequate consideration;     (iii) the taking or accepting of any other security or guaranty for, or right ofrecourse with respect to, any or all of the Obligations;     (iv) any homestead exemption or other exemption under applicable law;
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     (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition,subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or anyfailure to create or perfect any lien or security interest with respect to, or any other dealingswith, any collateral or security at any time existing or purported, believed or expected to existin connection with 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 release of the liabilityof the Guarantor, the Borrower or any other party hereunder or under any of the other LoanDocuments;     (vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination,receivership, reorganization, merger, consolidation, change of form, structure or ownership, saleof all assets, or lack of corporate, partnership or other power of the Borrower, the Guarantor orany other party at any time liable for the payment or performance of any or all of theObligations;     (viii) either with or without notice to or consent of the Guarantor, any renewal, extension,modification or rearrangement of the terms of any or all of the Obligations and/or any of the LoanDocuments, including, without limitation, material alterations of the terms of payment (includingchanges in maturity date(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 LoanDocuments or any other guaranty of any or all of the Obligations, or any adjustment, indulgence,forbearance, or compromise that may be granted from time to time by the Lender to the Borrower,the Guarantor, and/or any other Person at any time liable for the payment or performance of any orall of the Obligations;     (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of the Lender totake or prosecute (or in taking or prosecuting) any action for the collection or enforcement ofany of the Obligations, or to foreclose or take or prosecute any action to foreclose (or inforeclosing or taking or prosecuting any action to foreclose) upon any security therefor, or toexercise (or in exercising) any other right or power with respect to any security therefor, or totake or prosecute (or in taking or prosecuting) any action in connection with any Loan Document,or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateralsecuring 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, or assignment of the Obligations or anypart thereof, or of any Loan Document, or of any release of or change in any security, or of anyother action taken or refrained from being taken by the Lender against the Borrower or anysecurity or other recourse, or of any new agreement between the Lender and the Borrower, it beingunderstood that the Lender shall not be required to give the Guarantor any notice of any kindunder any circumstances with respect to or in connection with the Obligations, any and all rightsto notice that the Guarantor may have otherwise had being hereby waived by the Guarantor;     (xi) any refund of any payment by the Borrower or any other party liable for the payment orperformance of any or all of the Obligations;     (xii) the existence of any claim, set-off, or other right that the Guarantor may at any timehave against the Borrower, the Lender (other than pursuant to a finaljudgment), or any other Person, whether or not arising in connection with this Guaranty orany other Loan Document;
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     (xiii) the unenforceability of all or any part of the Obligations against theBorrower, whether because the Obligations exceed the amount permitted by law or violateany usury law, or because the act of creating the Obligations, or any part thereof, isbeyond the scope of powers granted, or because the officers or Persons creating same actedin excess of their authority, or because of a lack of validity or enforceability of ordefect or deficiency in any of the Loan Documents, or because the Borrower has any validdefense, claim or offset with respect thereto, or because the Borrower’s obligation ceasesto exist by operation of law, or because of any other reason or circumstance, it beingagreed that the Guarantor shall remain liable hereunder regardless of whether the Borroweror any other Person are found not liable on the Obligations, or any part thereof, for anyreason (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 proceedings underTitle 11 of the United States Code with respect to the Borrower or any other Person,including any extension, reduction, composition, or other alterationof the Obligations,whether or not consented to by the Lender; or     (xv) any failure to notify the Guarantor of, or obtain the Guarantor’s consent to,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 Lender is held toconstitute a preference, fraudulent transfer or other voidable payment under any bankruptcy,insolvency or similar law, or if for any other reason the Lender is required to refund such paymentor pay the amount thereof to any other party, such payment by the Borrower or any other party tothe Lender shall not constitute a release of the Guarantor from any liability hereunder, and thisGuaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release,surrender or discharge by the Lender of this Guaranty or of the Guarantor), as the case may be,with respect to, and this Guaranty shall apply to, any and all amounts so refunded by the Lender orpaid by the Lender to another Person (which amounts shall constitute part of the Obligations), andany interest 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 the Guarantor andthe Lender that the obligations and liabilities of the Guarantor hereunder are absolute andunconditional under any and all circumstances and that until the Obligations are fully and finallypaid and performed, and not subject to refund or disgorgement, the obligations and liabilities ofthe Guarantor hereunder shall not be discharged or released, in whole or in part, by any act oroccurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitabledischarge or release of any of the Guarantor except as otherwise set forth herein. The Lendershall be entitled to continue to hold this Guaranty in its possession for a period of one year fromthe date the Obligations are paid and performed in full and for so long thereafter as may benecessary to enforce any obligation of the Guarantor hereunder and/or to exercise any right orremedy of the Lender hereunder.          (c) if acceleration of the time for payment of any amount payable by the Borrower under theNote or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shallnonetheless be payable by the Guarantor on demand by the Lender.
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     **7.****Waiver of Trial by Jury; Consent to Jurisdiction.****WITHOUT INTENDING IN ANYWAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE” (FOR PURPOSES OF THIS SECTION, ASDEFINED IN THE “DISPUTE RESOLUTION” SECTION) AS SET FORTH IN THIS NOTE, AGREEMENT, OR GUARANTY, ASAPPLICABLE, TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THEARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED,BORROWER AND LENDER WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON SUCH“DISPUTE.” THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND LENDER, ANDBORROWER AND LENDER HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BYANY PERSON OR ENTITY 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 LOAN DOCUMENTS.BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING ASCONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. BORROWER FURTHER REPRESENTS AND WARRANTS THAT ITHAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE, AGREEMENT, OR GUARANTY, AS APPLICABLE, AND IN THEMAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BYINDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TODISCUSS THIS WAIVER WITH 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 proceeding arisingout of, or relating to, this Guaranty, and irrevocably agrees that all claims in respect of suchaction or proceeding may be heard and determined in such state or federal court. The Guarantorirrevocably waives, to the fullest extent permitted by law, any objection that the Guarantor maynow or hereafter have to the laying of venue of any such suit, action or proceeding brought in anysuch court, and any claims that any such suit, action or proceeding is brought in an inconvenientforum. Final judgment in any such suit, action or proceeding brought in any such court shall beconclusive and binding upon the Guarantor and may be enforced in any court in which the Guarantorare subject to jurisdiction, by a suit upon such judgment provided that service of process iseffected upon the Guarantor as provided in the Loan Documents or as otherwise permitted byapplicable law.     **8. ****Dispute Resolution.**     (a) Arbitration. Except to the extent expressly provided below, any Disputeshall, upon the request of either party, be determined by binding arbitration in accordance withthe Federal Arbitration Act, Title 9, United States Code (or if not applicable, the applicablestate law), the then-current rules for arbitration of financial services disputes of the AmericanArbitration Association, or any successor thereof (“AAA”) and the “Special Rules” set forth below.“Dispute” means any controversy, claim or dispute between or among the parties to this Note,Agreement, or Guaranty, as applicable, including any controversy, claim or dispute arising out ofor relating to (a) this Note, Agreement, or Guaranty, as applicable, (b) any other Loan Documents,(c) any related agreements or instruments, or (d) the transaction contemplated herein or therein(including any claim based on or arising from an alleged personal injury or business tort). In theevent of any inconsistency, 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 suing party,thereafter to require submittal of the Dispute to arbitration.
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Any party to this Note, Agreement, or Guaranty, as applicable, may bring an action, including asummary or expedited 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 or affiliate of Lenderinvolved in the servicing, management or administration of any obligation described in or evidencedby 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 or tangiblepersonal property collateral is located, or if there is no such collateral, in the City andCounty where Lender is located pursuant to its address for notice purposes 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 or legallyprecluded from enforcing any and all provisions of this Dispute Resolution Section, the anyparty to this Note, Agreement, or Guaranty, as applicable, may substitute anotherarbitration organization that has similar procedures to AAA and that will observe andenforce any and all provisions of this Dispute Resolution Section. All Disputes shall bedetermined by one arbitrator; however, if the amount in controversy in a Dispute exceedsFive Million Dollars ($5,000,000), upon the request of any party, the Dispute shall bedecided by three arbitrators (for purposes of this Note, Agreement, or Guaranty, asapplicable, referred to collectively as the “arbitrator”).     (iii)All arbitration hearings will be commenced within ninety (90) days of the demandfor arbitration and completed within ninety (90) days from the date of commencement;provided, however, that upon a showing of good cause, the arbitrator shall be permitted toextend the commencement of such hearing for up to an additional sixty (60) days.     (iv) The judgment and the award, if any, of the arbitrator shall be issued withinthirty (30) days of the close of the hearing. The arbitrator shall provide a concisewritten statement setting forth the reasons for the judgment and for the award, if any. Thearbitration award, if any, may be submitted to any court having jurisdiction to beconfirmed and enforced, and such confirmation and enforcement shall not be subject toarbitration.     (v) The arbitrator will give effect to statutes of limitations and any waivers thereofin determining the disposition of any Dispute and may dismiss one or more claims in thearbitration on the basis that such claim or claims is or are barred. For purposes of theapplication of the statute of limitations, the service on AAA under applicable AAA rules ofa 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.
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     (vii) The arbitrator shall have the power to award legal fees and costs pursuantto the 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) Reservationsof 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, orGuaranty, 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 a courtprovisional 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 proceeding inany action brought against Lender in a state, federal or international court, tribunal or hearingbody (including actions in specialty courts, such as bankruptcy and patent courts). Lender mayexercise the rights set forth in clauses (A) through (D), inclusive, before, during or after thependency of any arbitration proceeding brought pursuant to this Note, Agreement, or Guaranty, asapplicable. 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 regardingsubmission to jurisdiction and/or venue in any court is intended or shall be construed to be inderogation of the provisions in any Loan Document for arbitration of any Dispute.     (d) ConflictingProvisions 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 an allegedpersonal injury or business tort). In any other situation, if the resolution of a given Disputeis specifically governed by another provision or agreement for arbitration or dispute resolution,the other provision or agreement shall prevail with respect to said Dispute.     (e) JuryTrial 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 demand allattorneys’ fees and all other costs and expenses incurred by the Lender in the enforcement of orpreservation of the Lender’s rights under this Guaranty. The Guarantor’s obligations andliabilities under this Section 9 shall survive any payment ordischarge in full of the Obligations.     **10. ****Termof Guaranty**. This Guaranty shall continue in effect until such time as theObligations have been fully and finally paid and performed, except that, and notwithstanding anyreturn of this Guaranty to the Guarantor, this Guaranty shall continue in effect (a) with respectto any of the Obligations that survive after expiration or termination of the Loan, (b) withrespect to all obligations and liabilities of the Guarantor for indemnification and for the paymentof all costs and expenses, as provided herein, and (c) as provided herein with respect topreferential, fraudulent or other voidable payments or other transfers.
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     **11. ****Subordination**. If, for any reason whatsoever, the Borrower is now or hereafterbecomes indebted to the Guarantor:          (a) such indebtedness and all interest thereon and all liens, security interests and rightsnow or hereafter existing with respect to property of the Borrower securing same shall, at alltimes, be subordinate in all respects to the Obligations and to all liens, security interests andrights now or hereafter existing to secure the Obligations; and          (b) The Guarantor shall not be entitled to enforce or receive payment, directly or indirectly,of any such indebtedness of the Borrower to the Guarantor until the Obligations have been fully andfinally paid and performed. Notwithstanding the foregoing, the Guarantor may receive payments uponclose-out of any Project with regard to loans made by the Guarantor to the owner of any suchProject, or with regard to loans made to Borrower on behalf of the owner of any such Project.Notwithstanding the foregoing, the Guarantor may receive payments from Borrower in the form ofsalaries or shareholder or member dividends.     **12. ****Subrogation.** Notwithstanding anything to the contrary contained herein (a) theGuarantor shall not have any right of subrogation in or under any of the Loan Documents or toparticipate in any way therein, or in any right, title or interest in and to any security or rightof recourse for the indebtedness, until the later of the date on which the Indebtedness has beenfully and finally paid, or the Loan has expired or been terminated, and (b) if the Guarantor is orbecomes an “insider” (as defined in Section 101 of the United States Bankruptcy Code) with respectto the Borrower, then the Guarantor hereby irrevocably and absolutely waives any and all rights ofcontribution, indemnification, reimbursement or any similar rights against the Borrower withrespect to this Guaranty (including any right of subrogation, except to the extent of collateralheld by the Lender), whether such rights arise under an express or implied contract or by operationof law. It is the intention of the parties that the Guarantor shall not be deemed to be a“creditor” (as defined in Section 101 of the United States Bankruptcy Code) of the Borrower byreason of the existence of this Guaranty in the event that the Borrower or the Guarantor becomes adebtor in any proceeding under the United States Bankruptcy code.     **13. ****Notices.** Unless specifically provided otherwise, any notice for purposes of thisGuaranty shall be given in writing or by telecopier transmission and shall be addressed ordelivered to the respective addresses set forth at the end of this Guaranty, or to such otheraddress as may have been previously designated by the intended recipient by notice given inaccordance with this Section. If sent by prepaid, registered or certified mail (return receiptrequested), the notice shall be deemed effective when the receipt is signed or when the attemptedinitial delivery is refused or cannot be made because of a change in address of which the sendingparty has not been notified; and if transmitted by telecopier or personal delivery, the noticeshall be effective when received. No notice of change of address shall be effective except uponactual receipt.     **14. ****Cumulative Rights.** The exercise by the Lender of any right or remedy hereunderor under any other Loan Document, or at law or in equity, shall not preclude the concurrent orsubsequent exercise of any other right or remedy. The Lender shall have all rights, remedies andrecourses afforded to the Lender by reason of this Guaranty or any other Loan Document or by law orequity or otherwise, and the same shall be cumulative and concurrent and are intended to be, andshall be, nonexclusive. No waiver of any default on the part of the Guarantor or of any breach ofany of the provisions of this Guaranty or of any other document shall be considered a waiver of anyother or subsequent default or breach, and no delay or omission in exercising or enforcing therights and powers 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 or under anyother document shall be held toexhaust such rights and powers, and every such right and power may be exercised from time toytime.
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No provision of this Guaranty or any right, remedy or recourse of the Lender with respecthereto, or any default or breach, can be waived, nor can this Guaranty or the Guarantor be releasedor discharged in any way or to any extent, except specifically in each case by a writing intendedfor that purpose (and which refers specifically to this Guaranty) executed, and delivered to theGuarantor, by the Lender, except as otherwise provided herein.     **15. ****Disclosureof Information****.** The Lender may sell or offer to sell the Loan or aninterest in the Loan to one or more assignees or participants and may disclose to any suchassignee or participant or prospective assignee or participant any information the Lender haspertaining to the Loan, the Obligations, this Guaranty, or the Guarantor. The Lender also maydisclose any such information to any regulatory body having jurisdiction over the Lender and toany agent or attorney of the Lender and in such other circumstances and to such other parties asnecessary or appropriate in the Lender’s reasonable judgment.     **16. ****GoverningLaw; Forum****.** This Guaranty is an agreement executed under seal, andits validity, enforcement, and interpretation, shall for all purposes be governed by andconstrued in accordance with the laws of the state of Georgia **[CONFIRM]**and applicable UnitedStates federal law, and is intended to be performed in accordance with, and only to the extentpermitted by, such laws. If the Guarantor is a corporation, the designation “(SEAL)” on thisGuaranty shall be effective as the affixing of Guarantor’s corporate seal physically to thisGuaranty. All obligations of the Guarantor hereunder are payable and performable at the place orplaces where the Obligations are payable and performable. The Guarantor hereby irrevocablysubmits generally and unconditionally for the Guarantor and in 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 is located, over any suit, action or proceedingarising out of or relating to this Guaranty or the Obligations. The Guarantor hereby irrevocablywaives, to the fullest extent permitted by law, any objection that the Guarantor may now orhereafter have to the laying of venue in any such court and any claim that any such court is aninconvenient forum.     **17. ****Counterparts****.** This Guaranty may be executed in multiple counterparts, each ofwhich, for all purposes, shall be deemed an original, and all of which together shall constituteone and the same agreement.     **18. ****Miscellaneous****.**This Guaranty embodies the entire agreement between the Lenderand the Guarantor with respect to the guaranty by the Guarantor of the Obligations. This Guarantysupersedes all prior agreements and understandings, if any, with respect to guaranty by theGuarantor of the Obligations. This Guaranty may not be modified, amended or superseded except ina writing signed by the Lender and the Guarantor referencing this Guaranty by its date andspecifically identifying the portions hereof that are to be modified, amended or superseded.This Guaranty is binding not only on the Guarantor, but also on the Guarantor’s heirs, personalrepresentatives, successors and assigns. If any provision of this Guaranty or the applicationthereof to any Person or circumstance shall, for any reason and to any extent, be declared to beinvalid or unenforceable, neither the remaining provisions of this Guaranty nor the applicationof such provision to any other Person or circumstance shall be affected thereby, and theremaining provisions of this Guaranty, or the applicability of such provision to other Persons orcircumstances, as applicable, shall remain in effect and be enforceable to the maximum extentpermitted 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.
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It is expressly understood and agreed that this Guaranty is givenin replacement of the Original Guaranty, and that no obligations or liabilities evidenced bythe Original Guaranty shall be discharged, cancelled or impaired by the execution and delivery ofthis Agreement. To the extent any of the terms of the Original 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 this Guaranty,intending that it be an instrument under seal, as of the date first written above.             WITNESS: **GUARANTOR:**                     COMSTOCK HOMEBUILDING COMPANIES,        INC., a Delaware corporation               By: /s/ Bruce Labovitz     By: /s/ Christopher Clemente     Print Name: Bruce Labovitz        Print Name : Christopher Clemente    Print Title: CFO       Print Title: CEO               (SEAL)   **ADDRESS OF GUARANTOR:**                     11465 Sunset Hills Road        5th Floor