Loading...
Wells Fargo Financial/Golf Cart Lease 10Guaranty of lease Title of underlying agreement: Master Lease Agreement Name of underlying lessee or borrower: Landmark Golf Management, LLC This Guaranty is made effective the 1st day of October , 2010, by the undersigned City of La Quinta, a body corporate and politic existing under the laws of the State of California (the "Guarantor"), in favor of Wells Fargo Financial Leasing, Inc., a corporation organized and existing under the laws of the State of Iowa ("Wells Fargo'), its successors and assigns. Recitals: Whereas, Wells Fargo is contemporaneously herewith entering into the above -referenced master lease (the "Master Lease") with the above -referenced lessee (the "Debtor"), pursuant to which Wells Fargo and Debtor may from time to time enter into one or more lease schedules thereto (each a "Schedule" and together with the terms and conditions of the Master Lease incorporated therein by reference, the "Underlying Agreement"); and Whereas, it is a condition precedent to Wells Fargo's entering into and performing pursuant to the Underlying Agreement that Guarantor unconditionally and absolutely guaranty Debtor's complete and timely performance of all of Debtor's obligations under the Underlying Agreement and all other documents and agreements entered into pursuant to or in connection with the Underlying Agreement, pursuant to the terms and conditions of this Guaranty; and Whereas, Guarantor has represented to Wells Fargo that it is in the direct interest and to the direct economic benefit of Guarantor that Wells Fargo enter into and perform pursuant to the Undedying Agreement, and therefore, subject only to Section 13 below, Guarantor has agreed to unconditionally and absolutely guaranty Debtor's complete and timely performance of all of Debtor's obligations set forth in the Undedying Agreement, as more particularly set forth below; Now, Therefore, in order to induce Wells Fargo to enter into the Undedying Agreement and perform thereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Guarantor does hereby covenant and agree with Wells Fargo as follows: 1. As used in this Guaranty, the term "Undedying Agreement" shall include any and all other documents and agreements entered into pursuant to or in connection with the Underlying Agreement, and any all future amendments, modifications and/or extensions thereof. 2. Subject only to Section 13 below, Guarantor hereby unconditionally, irrevocably and absolutely guarantees to Wells Fargo, its successors and assigns: (a) that all sums now or hereafter due Wells Fargo from Debtor under the Underlying Agreement (including without limitation, interest, damages, costs, expenses, attorneys' fees and penalties) will be fully paid when and as due, whether by acceleration or otherwise, without delinquency or default; and (b) the complete and timely performance by Debtor of all the terms, promises, conditions and covenants of the Underlying Agreement. 3. In the event of any default by Debtor in the payment of any amount due and/or the performance of any of its other obligations, at any time and from time -to -time, under the Underlying Agreement, Guarantor shall fully pay, perform and discharge the same. Guarantor shall pay, perform and discharge all obligations hereunder upon demand by Wells Fargo, and covenants and agrees that Wells Fargo may proceed directly against Guarantor without first proceeding or making claim or exhausting any remedy against Debtor, any other third party, any other guarantor, or any property, or pursuing any particular remedy or remedies available to Wells Fargo. Guarantor agrees to pay to Wells Fargo all of Wells Fargo's costs, expenses and reasonable attorneys' fees incurred in enforcing the terms of the Undedying Agreement and/or this Guaranty. Guarantor shall be and remain liable for any deficiency following the foreclosure of any collateral securing the Underlying Agreement, whether or not the liability of Debtor thereunder is discharged by such foreclosure. Notwithstanding anything in this Section 3 or any provision in this Guaranty to the contrary, Guarantor's obligations hereunder shall in all respects be limited by the terms and conditions of Section 13 below. 4. Guarantor hereby unconditionally waives notice of acceptance of this Guaranty, presentment, protest, notice of protest, demand, dishonor, notice of the creation and existence of any future indebtedness, diligence, notice of non-performance, non-payment, default or breach by Debtor, and any and all other defenses based on suretyship or impairment of collateral, and all demands for performance and any and all notices that might otherwise be a condition precedent to the liability of Guarantor under this Guaranty. 5. Guarantor covenants and agrees that, without releasing, diminishing or otherwise affecting the liability of Guarantor or the performance of any obligation contained in this Guaranty, and without affecting the rights of Wells Fargo hereunder, Wells Fargo may, at any time and from time -to - time, and without notice to or further consent of Guarantor: (a) make any agreement extending or reducing the term of any or all of the Underlying Agreement, or otherwise altering the terms of payment of all or any part of any sum due thereunder, or any other obligation of Debtor, or granting any indulgences or extensions with respect to any of these matters, or modifying or otherwise dealing with any such agreement or obligation; (b) exercise or refrain from exercising or waiving any right Wells Fargo may have; (c) accept security of any kind from Debtor and/or any other party; and/or (d) consent to any assignment by Debtor, its successors and/or assigns, made with or without notice to Guarantor. 6. Guarantor agrees that, in the event of any one or more of the following, neither Guarantor's obligation to make payments in accordance with the terms of this Guaranty, nor any remedy for the enforcement of this Guaranty, shall be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of Debtor or its estate in bankruptcy or of any remedy for the enforcement resulting from the operation of any present or future provision of the federal Bankruptcy Code or from the decision of any court, to wit: (a) Debtor shall become insolvent or shall be adjudicated a bankrupt; (b) Debtor shall file a petition for reorganization, arrangement or similar relief under any present or future provision of the federal Bankruptcy Code; (c) a petition for reorganization, arrangement or similar relief under any present or future provision of the federal Bankruptcy Code fled by one or more creditors # 89533 0 Page 1 of 3 of Debtor shall be approved by a court; (d) Debtor shall seek a judicial readjustment of the rights of its creditors under any present or future federal or state law; and/or (e) a receiver of all or part of Debtors property and assets is appointed by any state or federal court, and in any such proceeding any of the Underlying Agreement shall be terminated or rejected or the obligations of Debtor thereunder shall be modified, in which case Guarantor shall immediately pay to Wells Fargo, its successors or assigns, an amount equal to the sum of: (i) all amounts due or delinquent as of the date of the termination, rejection or modification, (ii) all other amounts due or to become due Wells Fargo under the terms of the Underlying Agreement (including without limitation, interest, damages, costs, expenses, attorneys' fees and penalties), and (iii) interest on the amounts listed in (i) through (iii), above, at the rate of eighteen percent (18%) per annum, or at the highest rate allowed by applicable law, whichever rate is lower, from the date of the termination, rejection or modification to the date of payment. 7. Guarantor's obligations hereunder shall not be affected, impaired or diminished by reason of Wells Fargo's receipt of any other guaranty or surety or any benefit of recourse in connection with any of the Underlying Agreement. 8. Guarantor agrees to not obtain reimbursement or payment from Debtor or any other person or entity obligated with respect to any of the Underlying Agreement, or from any collateral therefore, until the obligations under such Underlying Agreement have been fully satisfied. 9. This Guaranty shall be binding upon Guarantor, its successors and assigns. Guarantor may not assign this Guaranty or any of its obligations hereunder, in whole or part. Wells Fargo may assign all or any part its rights under this Guaranty without notice to Guarantor, in which case this Guaranty shall inure to the benefit of any such assignee with the same force and effect as though the assignee was specifically named in this Guaranty. No invalidity, irregularity or unenforceability of all or any part of the obligations and liabilities hereby guaranteed, or of any security therefor, shall affect, impair or be a defense to this Guaranty. This Guaranty is a primary obligation of Guarantor. Without limiting the generality of the foregoing, Guarantor hereby waives any defense arising by reason of any disability of Debtor. Wells Fargo's failure to exercise any of its rights hereunder shall not operate as a waiver of said rights. Each provision in this Guaranty shall be interpreted in such a manner as to be effective and valid under applicable law. In the event any one or more provisions of this Guaranty are determined to be unenforceable, the remainder of this Guaranty shall remain in effect. A facsimile or other copy of this Guaranty shall have the full force and effect of the original. 10. This Guaranty shall be governed by and interpreted in accordance with the laws of the State of California. Any and all actions or proceedings arising directly or indirectly from this Guaranty shall be litigated in courts having a situs within the State of California. Guarantor consents to the personal jurisdiction of any local, stale or federal court located within the State of California. 11. Guarantor agrees that, so long as any obligations of Debtor remain under the Underlying Agreement or any obligations of Guarantor remain under this Guaranty, (A) all claims, demands, liens and security interests, now existing or arising in the future, if any, of Guarantor against the Debtor, arising or growing out of any indebtedness, liability, obligation or other responsibility, due or to become due by Debtor to Guarantor (collectively, "Guarantor Interests") are hereby expressly made subordinate and junior in right of payment and in lien priority to all of the Debtor's obligations to Wells Fargo under or relating to the Underlying Agreement (including, without limitation, any claim, demand, lien or security interest that accrued after the commencement of any proceeding relating to the bankruptcy, insolvency or reorganization of the Debtor to the extent Wells Fargo has the right to receive the same from Debtor), and (B) Guarantor shall not accept any payment or other thing of value from Debtor with respect to any Guarantor Interests. 12. This Guaranty contains the entire agreement between Guarantor and Wells Fargo with respect to Guarantor's guaranty of the Debtor's obligations under the Underlying Agreement. This Guaranty may be modified only in writing signed by Guarantor and an executive officer of Wells Fargo. Guarantor and Wells Fargo agree that a photocopy, carbon copy, facsimile or other reproduction of this Guaranty with Guarantors reproduced signature thereon shall be as valid and binding as the original -signature document and shall be treated as genuine and authentic as the original for all purposes. 13. Guarantor hereby represents, warrants and covenants to Wells Fargo that: (a) Guarantor intends, subject only to the provisions of this Section, to remit to Wells Fargo all sums due and to become due hereunder for the full multi -year term of the Underlying Agreement; (b) Guarantor's governing body has appropriated sufficient funds to pay all amounts due to Wells Fargo during Guarantor's current fiscal period; (c) Guarantor reasonably believes that legally available funds in an amount sufficient to make all such payments for the full multi -year term of the Underlying Agreement can be obtained; and (d) Guarantor intends to do all things lawfully within its power to obtain and maintain funds from which all such payments to become due during the full multi -year term of the Underlying Agreement, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable law. Notwithstanding the foregoing, the decision whether or not to budget and appropriate funds is within the discretion of Guarantor's governing body. In the event Guarantor's governing body fails to appropriate sufficient funds to make all payments and pay other amounts due and to become due during next fiscal period, Guarantor may, subject to the terms hereof, terminate this Guaranty as of the last day of the fiscal period for which appropriations were received (an "Event of Non -appropriation"). Guarantor agrees to deliver notice of an Event of Non -appropriation to Wells Fargo at least 30 days prior to the end of Guarantors thencument fiscal period, or if an Event of Non -appropriation has not occurred by that date, promptly upon the occurrence of any such Event of Non -appropriation. Guarantor and, by its acceptance of this Guaranty, Wells Fargo, understand and intend that Guarantor's obligation to make payments and pay other amounts due under this Guaranty shall constitute a current expense and shall not in any way be construed to be a debt in contravention of any applicable constitutional or statutory limitations or requirements concerning Guarantor's creation of indebtedness, nor shall anything contained herein constitute a pledge of Guarantor's general tax revenues, funds or monies. 14. Guarantor hereby represents, warrants and covenants to Wells Fargo that: (a) Guarantor has the power and authority under applicable law to enter into this Guaranty and the transactions contemplated herein and to perform all of its obligations hereunder, (b) Guarantor has duly authorized the execution and delivery of this Guaranty by appropriate official action of its governing body and has obtained such other authorizations, consents and/or approvals as are necessary to consummate this Guaranty, (c) all legal and other requirements have been met, and procedures have occurred, to render this Guaranty enforceable against Guarantor in accordance with its terms, (d) upon Wells Fargo's request, Guarantor will provide Wells Fargo with a copy of Guarantor's current financial statements within 150 days after the end of each fiscal period, and (e) during the term of the Underlying Agreement, unless and until this Guaranty is terminated in accordance with Section 13 above, Guarantor shall provide to Wells Fargo, no later than 10 days prior to the end of each fiscal period, with current budgets or other proof of appropriation for the ensuing fiscal period, and such other financial information relating to Guarantor's ability to continue this Guaranty, as Wells Fargo may request. Guarantor hereby acknowledges that the representations, warranties and covenants made by Guarantor in this Guaranty are being materially relied upon by Wells Fargo in entering into the Underlying Agreement. �_47e3YG'Lrii[il. #489533 v1 Page 2 of 3 !' r (a) Arbitration. The parties hereto agree, upon demand by any party, to submit to binding arbitration all claims, disputes and controversies between or among them (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, contract or otherwise, in any way arising out of or relating to this Guaranty and its negotiation, execution, collateralization, administration, repayment, modification, extension, substitution, formation, inducement, enforcement, default or termination. (b) Governing Rules. Any arbitration proceeding will (i) proceed in a location in California selected by the American Arbitration Association ("AAA"); (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (III) be conducted by the AAA, or such other administrator as the parties shall mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be referred to herein, as applicable, as the "Rules"), If there is any inconsistency between the terms hereof and the Rules, the terms and procedures set forth herein shall control. Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar applicable state law. (c) No Waiver of Provisional Remedies. Self -Help and Foreclosure. The arbitration requirement does not limit the right of any party to (i) foreclose against collateral; (if) exercise self-help remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (III) obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any party to submit any dispute to arbitration or reference hereunder, including those arising from the exercise of the actions detailed in sections (i), (ii) and (III) of this subsection (c). (d) Arbitrator Qualifications and Powers. Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must actively participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed in the State of California or a neutral retired judge of the state or federal judiciary of California, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrators discretion) any pre -hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of California and may grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the California Rules of Civil Procedure or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action forjudicial relief. (a) Discovery. In any arbitration proceeding, discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party's presentation and that no alternative means for obtaining information is available. (f) Class Proceedings and Consolidations. No party hereto shall be entitled to join or consolidate disputes by or against others in any arbitration, except parties who have executed this Guaranty or any other contract, instrument or document relating to the Underlying Agreement, or to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity. (g) Payment of Arbitration Costs and Fees. The arbitrator shall award all costs and expenses of the arbitration proceeding. (h) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any arbitration proceeding within 180 days of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between the parties potentially applies to a dispute, the arbitration provision most directly related to the documents between the parties or the subject matter of the dispute shall control. This arbitration provision shall survive termination, amendment or expiration of any of the documents or any relationship between the parties. In witness whereof, Guarantor has executed this Guaranty effective the day and year first set forth above. GUARANTOR: City�j\off LaQuinta B%�y:WtWA.�, Print name: Don Adolph, Mayor Title: #489533 0 Page 3 of 3