WHATEVER THE
NATURE OF A BREACH BY LENDER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY OF
THE LOAN DOCUMENTS, AND BORROWER, FOR ITSELF AND GUARANTOR, WAIVES ALL CLAIMS
FOR PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
SECTION 12.24
WRITTEN CREDIT AGREEMENTS.
BORROWER EXPRESSLY AGREES
THAT FOR PURPOSES OF THIS AGREEMENT AND EACH AND EVERY OTHER LOAN DOCUMENT: (I)
AS A DEBTOR, BORROWER MAY NOT MAINTAIN AN ACTION ON OR IN ANY WAY RELATED TO A
CREDIT AGREEMENT UNLESS THE CREDIT AGREEMENT IS IN WRITING, EXPRESSES AN
AGREEMENT OR COMMITMENT TO LEND MONEY OR EXTEND CREDIT OR DELAY OR FORBEAR
REPAYMENT OF MONEY, SETS FORTH THE RELEVANT TERMS AND CONDITIONS, AND IS SIGNED
BY THE CREDITOR AND THE DEBTOR; (II) NO CREDITOR SHALL BE LIABLE TO A PERSON NOT
IN PRIVITY OF CONTRACT WITH THE CREDITOR FOR CIVIL DAMAGES ARISING OUT OF A
CREDIT AGREEMENT, OR ANY CONDITIONS PRECEDENT THERETO, EXCEPT FOR ACTS OR
CONDUCT BY THE CREDITOR THAT CONSTITUTE FRAUD AGAINST THE PERSON; (III) THIS
AGREEMENT AND EACH AND EVERY OTHER LOAN DOCUMENT SHALL BE A "CREDIT AGREEMENT"
FOR PURPOSES OF INTERPRETING THE FOREGOING CLAUSES, (IV) THE PROVISIONS OF THIS
SECTION APPLY TO THIS TRANSACTION INCLUDING, BUT NOT LIMITED TO, THE EXECUTION
OF THIS AGREEMENT AND EACH AND EVERY OTHER LOAN DOCUMENT; AND (V) ANY ACTION ON
OR IN ANY WAY RELATED TO THIS AGREEMENT AND EACH AND EVERY OTHER LOAN DOCUMENT
SHALL BE GOVERNED BY THE PROVISIONS OF THIS SECTION.
SECTION 12.25
ACCORD AND SATISFACTION; DISPUTED DEBT.
BORROWER
HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO EFFECT AN ACCORD AND SATISFACTION
OF ANY SECURED OBLIGATION OR ANY OTHER DEBT OF BORROWER TO LENDER IN ACCORDANCE
WITH SECTION 3-311 OF THE UCC.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, EXCEPT AS EXPRESSLY
DIRECTED IN A WRITING ADDRESSED TO BORROWER AFTER THE DATE HEREOF, ANY AND ALL
COMMUNICATIONS OR NOTICES BY BORROWER OR ANY GUARANTOR TO LENDER CONCERNING
DISPUTED DEBTS, OBLIGATIONS OR LIABILITIES, WHETHER ARISING UNDER THIS AGREEMENT
OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY INSTRUMENT TENDERED AS FULL
SATISFACTION OF A DEBT, SHALL BE DELIVERED TO CORUS BANK, DEPARTMENT 311,
ATTENTION ROSA PAZ, 3959 N. LINCOLN AVENUE, CHICAGO ILLINOIS 60613.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
48
IN WITNESS WHEREOF, the parties have executed this Agreement, as of the date
first above written, pursuant to proper authority duly granted.
BORROWER:
COMSTOCK PENDERBROOK, L.C.,
a Virginia limited liability company
By:
Comstock Homebuilding Companies, Inc.,
a Delaware corporation,
Its Manager
By:
/s/ Christopher Clemente
Name:
Christopher Clemente
Title:
Chief Executive Officer
LENDER:
CORUS BANK, N.A.
By:
/s/ David H. Krischke
Name:
David H. Krischke
Title:
Assistant Vice President
49
TABLE OF EXHIBITS
Appendix A - Definitions and Interpretation
Exhibit A - The Land
Exhibit B - Project Budget
Exhibit C - Pending Litigation
Exhibit D - Ownership Chart
Exhibit E - Minimum Sales Guidelines
Exhibit F - Certification of Surveyor
Exhibit G - Form of Condominium Contract
50
APPENDIX A
DEFINITIONS AND INTERPRETATION
INTERPRETATION