Exhibit 10.2
COMPLETION
GUARANTY
THIS COMPLETION GUARANTY
(“Guaranty”) is made as of January 30, 2007, by JOHN K.
ANDERSON, individually and with LOIS A. ANDERSON, as co-trustees of
THE ANDERSON FAMILY TRUST dated February 28, 2001
(“Anderson”), WILLIAM A. SILVA, individually and with
KRISANTA K. L. SILVA, as co-trustees of THE SILVA FAMILY TRUST
dated April 7, 2000 (“William Sylva”), MARILYN J.
SILVA, individually and as sole trustee of THE MARILYN J. SILVA
LIVING TRUST dated April 22, 1991 (“Marilyn Silva”),
WOODMAN DEVELOPMENT COMPANY, LLC, a California limited liability
company (“Woodman LLC”), and WOODMAN DEVELOPMENT
COMPANY, INC., a California corporation (Woodman Inc.” and,
together with Anderson, William Silva, Marilyn Silva and Woodman
LLC, collectively, “Woodman”), and LYON EAST GARRISON
COMPANY I, LLC, a California limited liability company (“Lyon
East Garrison”), and WILLIAM LYON HOMES, INC., a California
corporation (“Lyon Homes” and, together with Lyon East
Garrison, collectively, “Lyon”; and Lyon and Woodman
are collectively referred to herein as “Guarantor”), in
favor of RESIDENTIAL FUNDING COMPANY, a Delaware limited liability
company (“Lender”).
R E C I T A L S:
A. Lender has made a revolving loan
in the principal amount of Seventy-Five Million Dollars
($75,000,000) (the “Loan”) to East Garrison Partners I,
LLC, a California limited liability company
(“Borrower”), pursuant to the terms of a Loan Agreement
dated of even date herewith (as amended, renewed, replaced or
otherwise modified from time to time, the “Loan
Agreement”) between the Lender and the Borrower. The Loan is
being made to finance (i) Borrower’s acquisition of certain
real property located in Monterey County, California (the
“Land”), and (ii) the performance by Borrower upon the
Land of certain development work (the Land, together with the
improvements, is referred to in this Guaranty as the
“Project”).
B. The Loan is evidenced by a
Revolving Promissory Note dated of even date herewith from Borrower
to Lender (as amended, renewed, replaced or otherwise modified from
time to time, the “Note”) and is secured, among other
security, by a certain Construction Deed of Trust, Security
Agreement and Fixture Filing With Assignment of Rents, Proceeds and
Agreements dated of even date herewith (as amended or otherwise
modified from time to time, the “Security Instrument”)
made by Borrower in favor of Lender.
C. Guarantor has a substantial
interest in Borrower and will derive benefit from the
Loan.
D. As a condition to making the
Loan, Lender has required that Guarantor execute and deliver this
Guaranty.
E. To induce Lender to make the Loan
and make disbursements under the Loan Agreement, and to accept the
Note, the Loan Agreement and the Security Instrument, Guarantor has
agreed to give this Guaranty.
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AGREEMENT:
NOW, THEREFORE, to induce Lender to
enter into the Loan Agreement and to make the Loan, and in
consideration thereof, Guarantor agrees as follows:
Section 1 Defined
Terms
Unless otherwise defined in this
Guaranty, all capitalized terms used in this Guaranty have the
meanings ascribed to those terms in the Loan Agreement.
Section 2 Guaranty
(a) Guarantor absolutely and
unconditionally guarantees the Completion of the Applicable
Development Work (as defined below) at the times and subject to the
terms and conditions set forth in the Loan Agreement (such
obligation of Guarantor is referred to in this Guaranty as the
“Completion Obligation”). As used in this Guaranty,
“Completion of the Applicable Development Work” means
that the following conditions are satisfied with respect to (i) all
Development Work described in the Phase Commitment for Phase 1,
(ii) all Development Work described in each other Phase Commitment,
if any, executed and delivered by Lender, (iii) all Development
Work (x) for which Lender has disbursed Loan proceeds or (y) for
which Loan proceeds have been budgeted pursuant to a Phase
Commitment executed and delivered by Lender, (iv) if Development
Work has been commenced in a Phase, which Development Work was not
described in a Phase Commitment executed and delivered by Lender,
then all Development Work and any and all other work, including,
without limitation, any and all on site or off site infrastructure
work, that must be completed with respect to such Phase so there is
no restriction on the ability of Borrower to sell and close escrow
on the sale of all Lots in such Phase, and (v) all other
Development Work, including, without limitation, any and all
on-site or off-site infrastructure work, that must be completed so
there is no restriction on (x) the ability of Borrower to sell and
close escrow on the sale of all Lots (A) described in each Phase
Commitment executed and delivered by Lender, or (B) included in any
Phase with respect to which Borrower or any Guarantor commenced
Development Work, or (y) the issuance of a building permit for each
Home to be constructed on a Lot:
(1) all of the Development Work has
been performed and completed (i) in a good and workerlike manner in
accordance with all applicable laws, rules, regulations, ordinances
and other applicable governmental requirements and private
restrictions, including all Hazardous Materials Laws, and (ii) in
accordance with the Plans and Specifications furnished to Lender by
Borrower pursuant to the terms of the Loan Agreement, without
substantial deviation therefrom;
(2) the Development Work is
diligently pursued by Guarantor to completion pursuant to a revised
Construction Progress Schedule approved by Lender in the exercise
of its reasonable discretion, with respect to which Construction
Progress Schedule Lender shall not withhold approval solely because
it fails to require Guarantor to remedy any delay in the progress
of the Development Work that may have existed at the time Lender
delivered to Guarantor the notice described in Section 3(a)
;
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(3) all notices of completion have
been filed and all statutory lien periods have expired;
(4) all costs of acquiring and
performing the Development Work as required by the Loan Agreement
have been paid;
(5) final lien waivers have been
obtained from all contractors performing work at the Project;
and
(6) the Development Work has been
completed in accordance with all applicable Hazardous Materials
Laws, which obligation includes the obligation to ensure that (i)
the Development Work and the Project are free and clear of
Hazardous Materials and Hazardous Materials Claims, (ii) remedial
work, that may have been required has been completed in accordance
with all Hazardous Materials Laws and with any written plan for the
remedial work approved by any public agencies having jurisdiction,
and (iii) all costs and expenses of the foregoing have been paid in
full, including any fines or penalties imposed in connection with
any required remedial work and the costs of testing or monitoring
resulting from any such remedial work or the existence at any time
of Hazardous Materials on, under or about the Project.
(b) In addition, Guarantor agrees to
pay all costs and expenses incurred by Lender, including reasonable
attorneys’ and paralegals’ fees, court costs and all
other litigation expenses (including reasonable expert witness
fees, exhibit preparation, and courier, postage, communication and
document copying expenses), in enforcing this Guaranty (the
Completion Obligation, together with the obligations set forth in
this Section 2(b) , are collectively referred to herein as
the “Guaranteed Obligations”) and the obligations set
forth in Section 4(a) are referred to herein as the “
Limited Guaranty Obligations ”). The Guaranteed
Completion Obligations and the Limited Guaranty Obligations are
collectively referred to herein as the “ Guaranteed
Obligations .”
Section 3 Performance of
Completion Obligations Upon Default by Borrower
(a) If Completion of the Applicable
Development Work is not accomplished by Borrower in accordance with
the Loan Documents, or if Lender takes possession of the Project as
permitted under the Loan Documents before the Completion of the
Applicable Development Work, then Guarantor, promptly upon receipt
of written notice thereof from Lender, will perform its Completion
Obligation. Guarantor will take whatever actions may be necessary
to perform the Completion Obligation, including the
following:
(1) diligently and expeditiously
proceed to ensure the Completion of the Applicable Development
Work, at Guarantor’s sole cost and expense, at the times and
subject to the terms and conditions set forth in the Loan
Agreement;
(2) fully pay and discharge all
direct and indirect costs incurred or required to be incurred in
connection with the Completion of the Applicable Development Work;
provided, however, that Guarantor will be entitled to receive
disbursements of the Loan in connection therewith pursuant and
subject to the conditions set forth in the Loan Agreement as more
fully described in subsection (b) below;
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(3) pay any amounts necessary to
release and discharge any mechanics’, material
providers’ or other liens that may exist or come into
existence in connection with the Completion of the Applicable
Development Work, or in the alternative contest the same subject to
the terms and conditions set forth in the Loan Agreement;
and
(4) perform or procure performance
of compliance with the obligations set forth in clause (6)
of Section 2(a) and pay such amounts as may become payable
in connection therewith.
(b) If Lender calls upon Guarantor
to perform its Completion Obligation pursuant to the terms of
subsection (a) above, then Guarantor will have the right to receive
disbursements of the Loan, and disbursements of the Loan shall be
made to pay interest accrued on the Loan in accordance with the
Interest Reserve provisions set forth in Section 2.6(c) of the Loan
Agreement, subject to the following terms and
conditions:
(1) Lender will be under no
obligation to disburse proceeds of the Loan to the Guarantor unless
Guarantor has cured every Event of Default and Potential Default by
Borrower, including Events of Default relating to failure of
Borrower to pay principal, interest, fees and/or expenses of the
Lender relating to the Loan that are required to be paid by
Borrower pursuant to the Loan Agreement or any other Loan Document;
provided, however, that Guarantor shall not be obligated to cure
any failure by Borrower solely to comply with Section 1.1(b),
2.8(2), 2.8(3) or 2.8(5) of the Loan Agreement.
(2) Lender will be under no
obligation to disburse proceeds of the Loan to Guarantor if
Guarantor is in default under any of the Loan Documents;
(3) Lender will be under no
obligation to disburse proceeds of the Loan to Guarantor if receipt
of such amounts by Guarantor is prohibited by law or by any
process, order or judgment of any court binding on Lender;
and
(4) proceeds of the Loan will be
disbursed to Guarantor only pursuant and subject to the terms and
conditions of the Loan Agreement.
Guarantor acknowledges that the
Completion Obligation of Guarantor hereunder is a joint and several
obligation. Guarantor expressly grants to Douglas F. Bauer and
Richard S. Robinson, either acting alone, of Lyon and William A.
Silva of Woodman (which names may be changed pursuant to Section 14
from the applicable Guarantor) (collectively, the “Guarantor
Representatives”) the right to issue jointly all notices and
to receive all disbursements of the Loan under this Section
3(b) regarding the Completion of the Applicable Development
Work; provided, however, that if the Guarantor Representatives give
conflicting instructions or if any Guarantor makes a request or
demand of Lender with respect to this Section 3(b) that
Lender perceives to conflict or be inconsistent with a request or
demand with respect to this Section 3(b) made by the
Guarantor Representatives, then Lender may require, as a condition
to (x) permitting the Guarantor Representatives to procure the
Completion of the Applicable Development Work under this Section
3(b) , or (y) making disbursements of the Loan under this
Section 3(b) , that each Guarantor concur in writing with
the logistics of the Completion of the Applicable Development Work
and/or with the requested disbursement of Loan proceeds
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hereunder, as Lender may require, and in the
absence of such joint request or concurrence, or if Lender is given
conflicting requests, Lender may decide, in its sole and absolute
discretion, whether and to what extent (1) to permit any Guarantor,
which Lender may select in its sole and absolute discretion, to
procure the Completion of the Applicable Development Work, or (2)
to advance funds to such Guarantor in respect of the performance of
the Completion of the Applicable Development Work; provided
further, however, that Lender shall follow the requests and
instructions of a single Guarantor if such Guarantor is so
designated in a final binding arbitration ruling, non-appealable
judicial determination or other procedure satisfactory to Lender.
Lender shall not be obligated to permit any Guarantor to procure
the Completion of the Applicable Development Work to the extent any
other Guarantor procures the Completion of the Applicable
Development Work. Lender shall not be obligated to make
disbursements of the Loan to any Guarantor to the extent
disbursements are made to any other Guarantor under this
Guaranty.
(c) Guarantor’s obligations
under this Guaranty will remain in full force and effect regardless
of whether the Guarantor or any other Person determines that
Completion of the Applicable Development Work is impossible. For
purposes of this Guaranty, “impossibility” which
impossibility includes the following matters: (i) a casualty that
affects, or discovery of unanticipated, soils conditions, or (ii)
Laws and Regulations or court orders applicable to the Project, or
(iii) other events or circumstances beyond the control of Borrower
or Guarantor relating to the Project (but specifically excluding
lack of funds or other monetary considerations or any other events,
circumstances or constraints affecting Borrower, Guarantor or
another Person as opposed to the Project). In such an event,
Guarantor will immediately notify Lender in writing of the event
and, in lieu of accomplishing Completion of the Applicable
Development Work as required pursuant to Section 3(a)(1)
above, Guarantor will pay to Lender an amount equal to the
Impossibility In-Lieu Payment (as defined below) immediately upon
written notice from Lender.
As used herein, “Impossibility
In-Lieu Payment” means an amount equal to the result obtained
by subtracting the “as-is” value of the Project (to the
extent that any Development Work has been performed) on a bulk sale
basis from the lesser of (x) the outstanding principal balance of
the Loan, or (y) the “as-if completed” value of the
Project on a bulk sale basis (assuming that the impossibility
precluding Completion of the Applicable Development Work did not
exist), based on an Appraisal Report paid for by Guarantor. In no
event, however, shall the Impossibility In-Lieu Payment be less
than zero.
Section 4 Limited Guaranty of
Payment
(a) In addition to the Guaranteed
Completion Obligations, from and after the occurrence of any of the
following events, Guarantor hereby unconditionally and irrevocably
guarantees to Lender (i) the full and prompt payment of the
principal sum of the obligations of Borrower under the Loan
Documents (the “ Borrower Obligations ”) in
accordance with the terms of the Loan Documents when due, by
acceleration or otherwise, together with all interest and other
charges accrued thereon pursuant to the Loan Documents and (ii) the
full and prompt payment of all other Borrower Obligations and all
other sums, together with interest accrued thereon, and the
performance of all other Borrower Obligations, when due pursuant to
the terms of the Loan Documents upon the occurrence of any of the
following; provided, however, that
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with respect to the occurrence of the events
described in clauses (1) through (6) of this
Section 4(a) , Guarantor’s liability for payment shall
be limited to all damages or loss, cost or expense incurred by
Lender, including reasonable attorneys’ and paralegals’
fees, court costs and all other reasonable litigation expenses
(including expert witness fees, exhibit preparation, and courier,
postage, communication and document copying expenses) in enforcing
this Guaranty, arising therefrom:
(1) the misapplication or
misappropriation by Borrower of any or all money collected, paid or
received, or to which Borrower is entitled, relating to the Loan or
the Project, including, but not limited to, insurance proceeds,
condemnation awards, lease security and other deposits and
rent;
(2) rents, issues, profits and
revenues of all or any portion of the Project received or
applicable to a period after the occurrence of any Event of Default
or after any event which, with the giving of notice and/or the
passage of time, would constitute an Event of Default under the
Loan Documents, which are not applied to pay, first, (a) real
estate taxes and other charges which, if unpaid, could result in
liens superior to that of the Deed of Trust, and (b) premiums on
insurance policies required under the Loan Documents and, second,
the other ordinary and necessary expenses of owning and operating
the Land and of performing the Development Work and/or to sums due
under the Loan Documents;
(3) waste committed on, or damage to
the Project as a result of intentional misconduct or gross
negligence or the removal of all or any portion of the Project in
violation of the terms of the Loan Documents;
(4) fraud, material
misrepresentation or the intentional or grossly negligent failure
to disclose a material fact by Borrower or any of its principals,
officers, general partners, managers or members, any guarantor or
any agent, employee or other person authorized or apparently
authorized to make statements, representations or disclosures on
behalf of any such person;
(5) Borrower fails to obtain
Lender’s prior written consent to any subordinate financing
or other voluntary lien encumbering the Project;
(6) Borrower fails to obtain
Lender’s prior written consent to any assignment, transfer or
conveyance of the Project or any portion thereof or any interest
therein or directly or indirectly in Borrower as required by the
Loan Documents; and/or
(7) a Bankruptcy Trigger
Event.
As used in this Section 4(a)
, the term “ Bankruptcy Trigger Event ” shall
mean the occurrence of any of the following:
(A) Borrower files a voluntary
petition under Title 11 of the United States Code (the “
Bankruptcy Code ”) or any other federal or any state
bankruptcy or insolvency law;
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(B) any Affiliate, officer, director
or representative which controls, directly or indirectly, Borrower
files, or joins in the filing of, an involuntary petition against
Borrower under the Bankruptcy Code or any other federal or any
state bankruptcy or insolvency law, or solicits or causes to be
solicited petitioning creditors for any involuntary petition
against Borrower from any Person;
(C) Borrower files an answer
consenting to, or otherwise acquiescing in, or joining in, any
involuntary petition filed against it by any other Person under the
Bankruptcy Code or any other federal or any state bankruptcy or
insolvency law, or solicits or causes to be solicited petitioning
creditors for any involuntary petition from any Person;
(D) any Affiliate, officer, director
or representative which controls Borrower consents to, or
acquiesces in, or joins in, an application for the appointment of a
custodian, receiver, trustee, or examiner for Borrower or any
portion of the Project; or
(E) Borrower makes an assignment for
the benefit of creditors or admits, in writing or in any legal
proceeding, its insolvency or inability to pay its debts as they
become due.
No provision in this Guaranty or in
any of the Other Loan Documents shall be deemed a waiver by Lender
of any right which Lender may have under Section 506(a), 506(b),
1111(b) or any other provisions of the Bankruptcy Code to file a
claim for the full amount of the Borrower Obligations or to require
that all collateral shall continue to secure all of the Borrower
Obligations owing to Lender in accordance with the Loan
Documents.
(b) All payments under this
Agreement shall be made to Lender in lawful money of the United
States of America at the address of Lender at the beginning of this
Agreement or such other location as Lender may designate in
writing. Any amount payable under this Agreement not paid when due
and any judgment for such an amount and interest thereon shall bear
interest at the Default Rate from the due date or such judgment
date, respectively, until such amount and interest thereon are paid
in full. Guarantor agrees to pay such interest on demand. All
Guaranteed Obligations will be paid and performed by Guarantor
without counterclaim, deduction, defense, deferment, reduction, or
setoff.
Section 5 Guaranty
Absolute
(a) The liability of Guarantor with
respect to the Guaranteed Obligations is absolute and unconditional
according to the terms of the Loan Documents, irrespective of any
of the following:
(1) any lack of validity or
enforceability of any of the Loan Documents, or any other agreement
or instrument relating thereto;
(2) any change in the time, manner
or place of payment of, or in any other term of, any of the
Guaranteed Obligations;
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(3) any amendment to, waiver of, or
consent to departure from, any of the Loan Documents, including
changes in the terms of disbursement of the Loan proceeds or
repayment thereof, modification to the Project, modifications,
extensions (including extensions beyond and after the Maturity
Date) or renewals of payment dates, changes in interest rate or the
advancement of additional funds by Lender in its
discretion;
(4) any exchange, release or
nonperfection of any collateral, or any release or amendment or
waiver of or consent to departure from any other guaranty, for any
of the Guaranteed Obligations; or
(5) any other circumstance that
might otherwise constitute a defense available to, or a discharge
of, Borrower in respect of the Guaranteed Obligations or Guarantor
in respect of this Guaranty.
(b) Notwithstanding any termination
of this Guaranty or the cancellation of the Note or any other
agreement evidencing the Guaranteed Obligations, if any payment or
performance of any of the Guaranteed Obligations (from any source)
is rescinded, repaid or must otherwise be returned by Lender (i)
due to or upon the insolvency, bankruptcy or reorganization of
Borrower or Guarantor, or (ii) for any other circumstance, this
Guaranty will continue to be effective or be reinstated, as the
case may be, all as though such payment had not been
made.
Section 6 Subrogation;
Subordination
Guarantor will not exercise any
rights that it may acquire by way of subrogation under this
Guaranty, by virtue of any payment made hereunder or otherwise,
until all the Guaranteed Obligations have been paid or performed in
full. For the purposes hereof, the Guaranteed Obligations will not
be deemed to be “paid or performed in full” until the
expiration of two years and one day (without the filing of any
bankruptcy, dissolution, reorganization, or insolvency proceedings
by or against Guarantor or Borrower during such period) after such
payment and/or performance. If any amount is paid to Guarantor on
account of such subrogation rights before the Guaranteed
Obligations have been paid or performed in full, the amount will be
held in trust for the benefit of Lender and will immediately be
paid to Lender to be credited and applied upon the Guaranteed
Obligations, whether matured or unmatured, in such order as Lender,
in its sole and absolute discretion, determines. Until the
Guaranteed Obligations are paid or performed in full, any
indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to the indebtedness of Borrower to Lender. Any
such indebtedness of Borrower to Guarantor will, if Lender so
requests, be collected, enforced and received by Guarantor as
trustee for Lender and be paid over to Lender on account of the
indebtedness of Borrower to Lender, but without reducing or
limiting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
Section 7 Agreements of
Guarantor
(a) The obligations under this
Guaranty are independent of and in addition to the undertakings of
Borrower pursuant to the Loan Documents, any evidence of
indebtedness issued in connection therewith, any mortgage, deed of
trust or security agreement given to secure the
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same, any other guaranties given in connection
with the Loan and any other obligations of Guarantor to
Lender;
(b) A separate action may be brought
to enforce the provisions of this Guaranty, whether Borrower is a
party in any such action or not;
(c) Lender may at any time, or from
time to time, in its sole discretion, without any notice to or
consent from Guarantor, take all or any of the following actions,
without such actions in any way affecting this Guaranty:
(1) extend or change the time of
payment and/or performance and/or the manner, place or terms of
payment and/or performance of all or any of the Guaranteed
Obligations;
(2) exchange, release and/or
surrender all or any of the collateral security, or any part
thereof, by whomsoever deposited, that is now or may hereafter be
held by Lender in connection with all or any of the Guaranteed
Obligations;
(3) sell and/or purchase all or any
such collateral at public or private sale, or at any broker’s
board, in the manner permitted by law and after giving any notice
that may be required, and after deducting all costs and expenses of
every kind for collection, sale or delivery, the net proceeds of
any such sale may be applied by Lender upon all or any of the
Guaranteed Obligations;
(4) settle or compromise with
Borrower, and/or any other person liable thereon, any and all of
the Guaranteed Obligations, and/or subordinate the payment of same,
or any part thereof, to the payment of any other debts or claims,
that may at any time be due or owing to Lender and/or any other
person or corporation;
(5) accept additional security or
guarantees of any kind;
(6) endorse, transfer or assign the
Note and other Loan Documents to any other party;
(7) release Borrower or any maker,
surety or other person liable for payment or performance of all or
any part of the Guaranteed Obligations; or
(8) further loan monies or give or
ex