GUARANTY AGREEMENT
Exhibit 10.27
This GUARANTY AGREEMENT (this “Guaranty”), dated as of July 2, 2016 (the “Effective Date”), is given by FIVE POINT OPERATING COMPANY, LLC, a Delaware limited liability company (the “Guarantor”), in favor of TREASURE ISLAND HOLDINGS, LLC, a Delaware limited liability company (“TIH”). Capitalized terms used in this Guaranty and not expressly otherwise defined herein shall have the meanings set forth for those terms in the Agreement (as defined below).
Factual Background
A. Reference is made to that certain Management Agreement (Treasure Island) dated as of even date herewith (as amended from time to time, the “Agreement”), executed by and between The Newhall Land and Farming Company, LLC, a Delaware limited liability company (“Manager”), and TIH, pursuant to which Manager, among other things, agreed to certain payment obligations as more particularly described in the Agreement.
B. Guarantor is an affiliate of Manager and will benefit from the performance of the mutual covenants set forth in the Agreement and accordingly is agreeing to provide this Guaranty.
Guaranty
1. Guaranty and Agreement. Guarantor absolutely, irrevocably, and unconditionally guarantees the full and punctual performance and completion by Manager of, and agrees to perform to the extent Manager does not do so, Manager’s payment obligations under section 7.2 of the Agreement as and when required pursuant to the terms of the Agreement (the “Obligations”). Guarantor shall assume responsibility for and shall fully perform all of the Obligations, at Guarantor’s sole cost and expense, promptly on receiving written notice from TIH that Manager has failed to perform any Obligations. Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due (whether or not any Insolvency Proceeding (as defined below) shall have stayed the accrual or collection of any of the Obligations or acted as a discharge thereof). Guarantor agrees that its guarantee hereunder is continuing in nature and applies to all Obligations, whether currently existing or hereafter incurred. Notwithstanding anything to the contrary herein, under no circumstances shall the aggregate liability of Guarantor hereunder or otherwise for the Obligations exceed Five Million Dollars ($5,000,000).
2. TIH’s Remedies. If Guarantor fails to promptly perform its obligations under Section 1 above, TIH shall immediately have the right to bring any action at law or in equity or both, or commence any reference or arbitration proceeding to compel Guarantor to perform its obligations under Section 1 above, and to collect compensation for all loss, cost, damage, injury and expense which may be sustained or incurred by TIH as a direct or indirect consequence of Guarantor’s failure to perform those obligations, including interest at an interest rate of ten percent (10%) per annum. TIH from time to time may bring such an action or commence such a reference or arbitration proceeding, regardless of whether TIH has first required performance by Manager or whether TIH has exhausted any or all security for the Obligations.
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3. Rights of TIH. Guarantor authorizes TIH to perform any or all of the following acts at any time in its sole and absolute discretion, all without notice to Guarantor and without affecting Guarantor’s obligations under this Guaranty:
3.1 Subject to any consents needed from Manager pursuant to the terms of the Agreement, TIH may alter any terms or conditions of the Agreement or any part of it;
3.2 TIH may take and hold security for the Obligations, exchange, waive or release any or all such security (with or without consideration) or enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion;
3.3 TIH may release Manager from its liability under the Agreement; and
3.4 TIH may substitute, add or release any one or more guarantors for the Obligations.
Without limiting the foregoing, Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, or amended or modified, without notice to or further assent from it, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal, amendment or modification of any Obligation.
4. Guaranty to be Absolute. Guarantor expressly agrees that, until the Obligations are fully paid and performed in accordance with the Agreement and each and every term, covenant, and condition of this Guaranty is fully performed, Guarantor shall not be released by or because of, and the obligations of Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination because of:
4.1 Any act or event which might otherwise discharge, reduce, limit, or modify Guarantor’s obligations under this Guaranty;
4.2 Any waiver, extension, modification, forbearance, delay, or other act or omission of TIH, or its failure to proceed promptly or otherwise as against Manager, Guarantor or any security, including any release of, or any impairment of, or failure to perfect any lien on or security interest in, any security held by TIH for the Obligations;
4.3 Any action, omission or circumstance which might increase the likelihood that Guarantor may be called upon to perform under this Guaranty or which might affect the rights or remedies of Guarantor as against Manager;
4.4 Any dealings occurring at any time between Manager, on the one hand, and TIH, on the other, whether relating to the Obligations or otherwise; or
4.5 Any action of TIH described in Section 3 above.
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Guarantor hereby acknowledges that absent this Section 4, Guarantor might have a defense to the enforcement of this Guaranty as a result of one or more of the foregoing acts, omissions, agreements, waivers, or matters. Guarantor hereby expressly waives and surrenders any defense to any liability under this Guaranty based upon any of such acts, omissions, agreements, waivers, or matters. It is the express intent of Guarantor that Guarantor’s obligations under this Guaranty are and shall be absolute, unconditional, and irrevocable.
5. Guarantor’s Waivers. Guarantor waives:
5.1 All statutes of limitations as a defense to any action or proceeding brought against Guarantor by TIH, to the fullest extent permitted by law;
5.2 Any right it may have to require TIH to proceed against Manager, proceed against or exhaust any security held from Manager, or pursue any other remedy in TIH’s power to pursue;
5.3 Any defense based on any claim that Guarantor’s obligations exceed or are more burdensome than those of Manager;
5.4 Any defense based on: (a) any legal disability of Manager or the invalidity, illegality or unenforceability of the Obligations or any part thereof or any impossibility of performance of the Obligations; (b) any release, discharge, modification, impairment or limitation of the liability of Manager to TIH from any cause, whether consented to by TIH or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships, including any proceeding under the Bankruptcy Reform Act of 1978, as amended or recodified (the “Bankruptcy Code”), or under any other present or future state or federal law regarding bankruptcy, reorganization or other relief to debtors (any such proceeding referred to as an “Insolvency Proceeding”); or (c) any rejection or disaffirmance of the Obligations, or any part of any of them, or any security held for any of them, in any such Insolvency Proceeding;
5.5 Any defense based on any action taken or omitted by TIH in any Insolvency Proceeding involving Manager, including any election to have TIH’s claim allowed as being secured, partially secured or unsecured, any extension of credit by TIH to Manager in any Insolvency Proceeding, and the taking and holding by TIH of any security for any such extension of credit;
5.6 All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of intention to accelerate, notices of acceleration, notices of default, notices of dishonor, notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind, except for any demand or notice by TIH to Guarantor expressly provided for in Section 1 above;
5.7 Any defense based on or arising out of any defense that Manager may have to the payment or performance of the Obligations or any part of them;
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5.8 Any defense based on any lack of authority of the officers, directors, partners, members, or agents acting or purporting to act on behalf of Manager or any principal of Manager or any defect in the formation of Manager or any principal of Manager; and
5.9 Any defense based on or arising out of any action of TIH described in Section 3 or Section 4 above.
6. Waivers of Subrogation and Other Rights and Defenses.
6.1 Upon a breach or default by Manager under the Agreement, TIH in its sole and absolute discretion, without prior notice to or consent of Guarantor, may elect to: (a) foreclose either judicially or nonjudicially (as allowed by applicable law) against any real or personal property security it may hold for the Obligations; (b) accept a transfer of any such security in lieu of foreclosure; (c) compromise or adjust the Obligations or any part of them or make any other accommodation with Manager or Guarantor; or (d) exercise any other remedy against Manager or any security. No such action by TIH shall release or limit the liability of Guarantor, who shall remain liable under this Guaranty after the action, even if the effect of the action is to deprive Guarantor of any subrogation rights, rights of indemnity, or other rights to collect reimbursement from Manager for any sums paid or performance rendered to TIH, whether contractual or arising by operation of law or otherwise. Guarantor expressly agrees that under no circumstances shall it be deemed to have any right, title, interest or claim in or to any real or personal property to be held by TIH or any third party after any foreclosure or transfer in lieu of foreclosure of any security for the Obligations.
6.2 Regardless of whether Guarantor may have made any payments to TIH, Guarantor hereby waives: (a) all rights of subrogation, indemnification, contribution, and any other rights to collect reimbursement from Manager or any other party for any sums paid or performance rendered to TIH, whether contractual or arising by operation of law (including, without limitation, under any provisions of the Bankruptcy Code, or any successor or similar statutes) or otherwise; (b) all rights to enforce any remedy that TIH may have against Manager; and (c) all rights to participate in any security now or later to be held by TIH for the Obligations. Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification, and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement, indemnification, and contribution Guarantor may have against Manager or against any collateral or security, shall be junior and subordinate to any rights TIH may have against Manager, and to all right, title, and interest TIH may have in any such collateral or security. If any amount shall be paid to Guarantor on account of any such subrogation, reimbursement, indemnification, or contribution rights at any time when all Obligations have not been paid or performed in full, such amount shall be held in trust for TIH and shall forthwith be paid over to TIH to be credited and applied against the Obligations, whether matured or unmatured, in accordance with the terms of the Agreement. The covenants and waivers of Guarantor contained in this Section 6.2 shall be effective until the termination of this Guaranty, and are made for the benefit of TIH, Manager, and any other Person against whom Guarantor shall at any time have any rights of subrogation, reimbursement, indemnification, or contribution with respect to Guarantor’s obligations under this Guaranty.
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6.3 Guarantor waives any rights and defenses that are or may become available to Guarantor by reason of any statute governing guaranties or suretyship.
6.4 Guarantor waives any right or defense it may have at law or equity other than satisfaction of the Obligations, which may provide, among other things: that a creditor must file a complaint for deficiency within a specified period of time after a nonjudicial foreclosure sale or judicial foreclosure sale, as applicable; that a fair market value hearing must be held; and that the amount of the deficiency judgment shall be limited to the amount by which the unpaid debt exceeds the fair market value of the security, but not more than the amount by which the unpaid debt exceeds the net proceeds of the sale of the security.
6.5 No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty.
6.6 Guarantor agrees that the payment or performance of any act which tolls any statute of limitations applicable to the Obligations shall similarly operate to toll the statute of limitations applicable to Guarantor’s liability hereunder.
7. Revival and Reinstatement. If any payment of any Obligation is rescinded or if TIH is required to pay, return, or restore to Manager or any other Person any amounts previously paid on the Obligations because of any Insolvency Proceeding of Manager, any stop notice, or any other reason, the obligations of Guarantor hereunder shall be reinstated and revived and the rights of TIH hereunder shall continue with regard to such amounts, all as though they had never been paid.
8. Information Regarding Manager. Before signing this Guaranty, Guarantor investigated the financial condition and business operations of Manager and such other matters as Guarantor deemed appropriate to assure itself of the ability of Manager to discharge the Obligations. Guarantor assumes full responsibility for that due diligence, as well as for keeping informed of all matters that may affect the ability of Manager to pay and perform its Obligations. TIH has no duty to disclose to Guarantor any information which TIH may have or receive about the financial condition or business operations of Manager, the condition or uses of the Property, or any other circumstances bearing on the ability of Manager to perform.
9. Intentionally Omitted.
10. Guarantor’s Representations and Warranties. Guarantor makes the following representations and warranties for the benefit of TIH, which shall survive the execution and delivery of this Guaranty:
10.1 All financial statements and other financial information relating to Guarantor furnished or to be furnished to TIH are or shall be, at the time furnished, true and correct in all material respects and do or shall, at the time furnished, present fairly in all material respects the financial condition of Guarantor (including all contingent liabilities);
10.2 All financial statements relating to Guarantor furnished or to be furnished to TIH comply or shall comply, at the time furnished, with all government regulations that apply;
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10.3 All financial statements relating to Guarantor furnished or to be furnished to TIH were or shall be, at the time furnished, prepared in accordance with generally accepted accounting principles, consistently applied unless otherwise noted therein;
10.4 There are no claims, actions, proceedings or investigations pending against Guarantor, which, if adversely resolved, would have a material adverse impact upon Guarantor’s ability to perform its obligations hereunder. To the best of Guarantor’s knowledge, there has been no threat of any such claim, action, proceeding or investigation;
10.5 There has been no material adverse change in the business condition (financial or otherwise), operations, properties or prospects of Guarantor since the dates of the financial statements most recently furnished to TIH;
10.6 Guarantor has all requisite organizational power and authority to execute, deliver and perform all of its obligations under this Guaranty. The execution, delivery, and performance by Guarantor of this Guaranty have been duly authorized by all necessary limited liability or other organizational action. This Guaranty has been duly authorized, executed and delivered by Guarantor and constitutes the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms. No provision or obligation of Guarantor contained in this Guaranty violates any applicable law, regulation or ordinance, or any order or ruling of any court or Governing Agency. No such provision or obligation conflicts with, or constitutes a breach or default under, any agreement to which Guarantor is a party. No consent, approval or authorization of or notice of or to any Person is required in connection with Guarantor’s execution of, and performance of its obligations under, this Guaranty; and
10.7 Guarantor directly or indirectly holds material interests in Manager.
11. Events of Default. TIH may declare Guarantor to be in default under this Guaranty upon the occurrence of any of the following events (each an “Event of Default”), following written notice to Guarantor and ten (10) days opportunity to cure (provided, however, that there shall be no cure with respect to matters set forth in Sections 11.2, 11.4 and 11.5):
11.1 Guarantor fails to perform any of its obligations under this Guaranty;
11.2 Guarantor purports to revoke this Guaranty or this Guaranty becomes ineffective for any reason;
11.3 Any representation or warranty made or given by Guarantor to TIH proves to be false or misleading in any material respect;
11.4 Guarantor becomes insolvent or the subject of any Insolvency Proceeding; provided, however, that an involuntary Insolvency Proceeding shall not be considered an Event of Default hereunder if it is either (a) consented to in writing by TIH, or (b) has been dismissed within ninety (90) days of the filing thereof; or
11.5 Guarantor dissolves or liquidates.
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12. Additional and Independent Obligations. Guarantor’s obligations under this Guaranty are in addition to its obligations under any other existing or future guaranties, each of which shall remain in full force and effect until it is expressly modified or released in a writing signed by TIH. Guarantor’s obligations under this Guaranty are independent of those of Manager with respect to the Obligations. TIH may bring a separate action, or commence a separate reference or arbitration proceeding against Guarantor without first proceeding against Manager, any other Person or any security that TIH may hold, and without pursuing any other remedy.
13. No Waiver; Consents; Cumulative Remedies. Each waiver by TIH shall be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from TIH’s delay in exercising or failure to exercise any right or remedy against Manager, Guarantor or any security. Consent by TIH to any act or omission by Manager or Guarantor shall not be construed as a consent to any other or subsequent act or omission, or as a waiver of the requirement for TIH’s consent to be obtained in any future or other instance. All remedies of TIH against Manager and Guarantor are cumulative.
14. Survival. This Guaranty shall remain in full force and effect and shall survive the exercise of any remedy by TIH under the Agreement.
15. Successors and Assigns. The terms of this Guaranty shall bind and benefit the successors and assigns of TIH and Guarantor; provided, however, that Guarantor may not assign this Guaranty, or assign or delegate any of its rights or obligations under this Guaranty, without the prior written consent of TIH in each instance.
16. Notices. All notices given under this Guaranty shall be in writing and be given by personal delivery, overnight receipted courier (such as Federal Express), or by registered or certified United States mail, postage prepaid, at the following addresses:
| If to Guarantor: | Five Point Operating Company LLC | |
| 00 Xxxxxxxxxx Xxxxx | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| with a copy to: | ||
| Five Point Operating Co., LLC | ||
| 00 Xxxxxxxxxx, Xxxxx 000 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Legal Notices | ||
| and a copy to: | ||
| Xxxx Xxxxxxxx LLP | ||
| 00 Xxxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxx | ||
| Facsimile: 415.856.7123 | ||
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| If to TIH: | ||
| TREASURE ISLAND HOLDINGS, LLC | ||
| c/o Lennar Corporation | ||
| 00 Xxxxxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxx Xxxxx | ||
| Xxxx Xxxxx | ||
| with a copy to: | ||
| TREASURE ISLAND HOLDINGS, LLC | ||
| c/o Lennar Corporation | ||
| 000 XX 000xx Xxxxxx | ||
| Xxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxx Xxxxxxx, General Counsel | ||
| and a copy to: | ||
| Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP | ||
| 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxxx X. Xxxx, Esq. | ||
| Facsimile: 305.351.2232 | ||
| and a copy to: | ||
| HPSCP Opportunities, L.P. | ||
| x/x Xxxxxxxxxx | ||
| 0000 Xxxxx Xxxxx Center | ||
| 00 Xxxxx Xxxxxxx Xxxxxx | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: General Counsel | ||
| Facsimile: 612.851.3001 | ||
Notices shall be effective upon the first to occur of receipt, when proper delivery is refused, or the expiration of forty-eight (48) hours after deposit in registered or certified United States mail as described above. Addresses for notice may be changed by any party by notice to any other party in accordance with this Section. If Guarantor consists of more than one party, service of any notice on any one Guarantor signing this Guaranty shall be effective service on Guarantor for all purposes.
17. Rules of Construction. In this Guaranty, the word “Manager” includes both Manager
and any other Person who at any time assumes or otherwise becomes primarily liable for all or any part of the Obligations of Manager under the Agreement. If this Guaranty is executed by more than one person, the word “Guarantor” includes all such persons. The word “include(s)” means “include(s), without limitation,” and the word “including” means “including, but not limited to.” When the context and construction so require, all words used in the singular shall be deemed to have been used in the plural and vice versa. No listing of specific instances, items or
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matters in any way limits the scope or generality of any language of this Guaranty. All headings appearing in this Guaranty are for convenience only and shall be disregarded in construing this Guaranty.
18. Governing Law; Submission to Jurisdiction.
18.1 This Guaranty and the rights and obligations of the parties hereunder, and any claim, controversy or dispute arising under or related to this Guaranty, shall be governed by, and construed in accordance with, the laws of the State of California.
18.2 Each party hereto consents to the non-exclusive jurisdiction of the federal and state courts within the County of San Francisco in the State of California with regard to any action or proceeding arising out of or relating to this Guaranty.
19. Costs and Expenses. If any lawsuit, reference, or arbitration is commenced which arises out of, or which relates to this Guaranty, the prevailing party shall be entitled to recover from each other party such sums as the court, referee, or arbitrator may adjudge to be reasonable attorneys’ fees (including allocated costs for services of in-house counsel) in the action or proceeding, in addition to costs and expenses otherwise allowed by law. In all other situations, including any Insolvency Proceeding, Guarantor agrees to pay all of TIH’s costs and expenses, including attorneys’ fees (including allocated costs for services of TIH’s in-house counsel), that may be incurred in any effort to collect or enforce the Obligations or any part of the Obligations or any term of this Guaranty. From the time(s) incurred until paid in full to TIH, all sums shall bear interest at an interest rate of ten percent (10%) per annum.
20. Consideration. Guarantor acknowledges that it expects to benefit from TIH’s performance of its obligations under the Agreement because of its relationship to Manager, and that it is executing this Guaranty in consideration of that anticipated benefit.
21. Enforceability. Guarantor acknowledges that Guarantor has had adequate opportunity to carefully read this Guaranty and to seek and receive legal advice from skilled legal counsel of Guarantor’s choice in the area of financial transactions of the type contemplated herein prior to signing it. Guarantor hereby acknowledges that: (a) the obligations undertaken by Guarantor in this Guaranty are complex in nature; (b) numerous possible defenses to the enforceability of these obligations may presently exist and/or may arise hereafter; and (c) as part of TIH’s consideration for entering into the Agreement, TIH has specifically bargained for the waiver and relinquishment by Guarantor of all such defenses. Given all of the above, Guarantor does hereby represent and confirm to TIH that Guarantor is fully informed regarding, and that Guarantor does thoroughly understand: (i) the nature of such possible defenses; (ii) the circumstances under which such defenses may arise; (iii) the benefits which such defenses might confer upon Guarantor; and (iv) the legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the intent that this Guaranty and all of the informed waivers herein shall each and all be fully enforceable by TIH, and that TIH was induced to enter into the Agreement in material reliance upon the presumed full enforceability hereof.
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22. Miscellaneous. This Guaranty may be executed in counterparts, and all counterparts shall constitute but one and the same document. The illegality or unenforceability of one or more provisions of this Guaranty shall not affect any other provision. Time is of the essence in the performance of this Guaranty by Guarantor.
23. Integration; Modifications. This Guaranty (a) integrates all the terms and conditions mentioned in or incidental to this Guaranty, (b) supersedes all oral negotiations and prior writings with respect to its subject matter, and (c) is intended by Guarantor and TIH as the final expression of the agreement with respect to the terms and conditions set forth in this Guaranty and as the complete and exclusive statement of the terms agreed to by Guarantor and TIH. This Guaranty may not be modified except in a writing signed by both TIH and Guarantor. No course of prior dealing, usage of trade, parol or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the Effective Date.
| GUARANTOR: | ||||
| FIVE POINT OPERATING COMPANY, LLC, a Delaware limited liability company | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
| Agreed and Accepted: | ||||
| TREASURE ISLAND HOLDINGS, LLC, a Delaware limited liability company | ||||
| By: | Lennar Homes of California, Inc., | |||
| a California corporation, its Sole Member | ||||
| By: |
| |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Treasure Island Management Agreement — Guaranty Agreement]
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the Effective Date.
| GUARANTOR: | ||||
| FIVE POINT OPERATING COMPANY, LLC, a Delaware limited liability company | ||||
| By: |
| |||
| Name: |
| |||
| Title: |
| |||
| Agreed and Accepted: | ||||
| TREASURE ISLAND HOLDINGS, LLC, a Delaware limited liability company | ||||
| By: | Lennar Homes of California, Inc., a California corporation, its Sole Member | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
|
| ||||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Treasure Island Management Agreement — Guaranty Agreement]
