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HomeMy WebLinkAboutCompletion Guaranty/Park East Public Improvements 12/15/14 COMPLETION GUARANTY Second Component Park East/Second Component Public Improvements This Completion Guaranty (Second Component-Park East/Second Component Public Improvements) (the "Guaranty"), executed this 15th day of December, 2014, by Carmel City Center, LLC ("CCC"), CCC West, LLC ("CCC West"), and CCC Phase II, LLC ("CCC Phase II") (CCC, CCC West, and CCC Phase II, jointly and severally, the "Guarantor"), and Pedcor Investments, A Limited Liability Company ("Pedcor Investments"), in favor of The City of Carmel Redevelopment Commission ("CRC"), Witnesses: Recitals WHEREAS, CRC, CCC, CCC West, and CCC Phase II(CCC West and CCC Phase II,jointly and severally, the"Second Component Developer") have executed that certain Project Agreement(Second Component/Park East/Second Component Public Improvements) dated December 15, 2014 (the "Second Component Project Agreement"); WHEREAS, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Second Component Project Agreement; WHEREAS,pursuant to the Second Component Project Agreement,the Second Component Developer is obligated to construct the Second Component on the Second Component Site in accordance with the Final Plans; WHEREAS, this Agreement is the "Second Component Completion Guaranty" required to be executed pursuant to the Second Component Project Agreement; WHEREAS,"Construction Obligations"shall mean the obligations of the Second Component Developer under the Second Component Project Agreement with respect to the construction of the Second Component on the Second Component Site in accordance with the Second Component Final Plans; WHEREAS,pursuant to the Second Component Project Agreement,the Second Component Developer may use Available Bond Proceeds in the amount of: (a)the total Available Bond Proceeds; minus (b) the $900,000.00 of Available Bond Proceeds to be used to construct the Kent Public Improvements pursuant to the Kent Project Agreement; to construct the Garage and the Second Component Public Improvements; WHEREAS, the amount determined in the previous "Whereas" clause is the "SC Bond Proceeds"; WHEREAS, "Balance Requirements" shall mean the requirement that, at the end of each calendar quarter: (a)the percentage of the SC Bond Proceeds disbursed to fund construction of the Garage and the Second Component Public Improvements shall not exceed the percentage of completion of the Second Component; and (b) the remaining undisbursed SC Bond Proceeds are sufficient to complete the Garage and the Second Component Public Improvements in accordance with the Second Component Final Plans; WHEREAS, Guarantor and Pedcor Investments are executing this Guaranty to satisfy the requirements of the Second Component Project Agreement; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, Guarantor and Pedcor Investments covenant and agree as follows: 1. Guarantees. (a) Guarantor. Guarantor absolutely and unconditionally guarantees the full and prompt performance of the Construction Obligations. (b) Balance. Pedcor Investments absolutely and unconditionally guarantees the satisfaction, as of the end of each calendar quarter and until such time as the Garage and the Second Component Public Improvements have been completed, of the Balance Requirements. (c) Term. This Guaranty shall continue in full force and effect with respect to: (i) Guarantor until all of the Construction Obligations are performed in full; and (ii) Pedcor Investments until the Garage and the Second Component Public Improvements have been completed; provided that if, pursuant to Section 12 of the Second Component Project Agreement, CRC elects to require the reconveyance of the Second Component Site, then, at the time that the Second Component Site is reconveyed to CRC, this Guaranty automatically shall terminate and be of no further force or effect. 2. Waivers. Guarantor and Pedcor Investments expressly waive: (a) demand, notice of demand and dishonor, protest,and notice of protest and nonperformance of the Construction Obligations;and(b)diligence in: (i)enforcing the Construction Obligations or the satisfaction of the Balance Requirements; (ii)the exercise of rights or remedies under the Second Component Project Agreement; or (iii) bringing suit against the Second Component Developer or any other party. CRC shall be under no obligation: (a)to notify Guarantor or Pedcor Investments of: (i) its acceptance of this Guaranty; or (ii) the failure of the Second Component Developer to timely perform the Construction Obligations; or(b) to use diligence in: (i) preserving the liability the Second Component Developer or any other party; or (ii) bringing suit to enforce performance of the Construction Obligations or otherwise enforcing the satisfaction of the Balance Requirements. To the full extent allowed by applicable law, Guarantor and Pedcor Investments waive all defenses: (a)given to sureties or guarantors at law or in equity, other than the actual performance of the Construction Obligations and the actual satisfaction of the Balance Requirements; and (b) based upon questions as to the validity, legality, or enforceability of the Construction Obligations or the Balance Requirements. Guarantor and Pedcor Investments unconditionally waive: (a) any claim or other right now existing or hereafter arising against the Second Component Developer or any other party that arises from, or by virtue of, the existence or performance of this Guaranty (including, without limitation, any right of subrogation, reimbursement, exoneration,contribution, indemnification, or to payment); and (b)any right to participate or share in any right, remedy, or claim of CRC. 3. Rights. CRC, without: (a)authorization from, or notice to, Guarantor or Pedcor Investments; and/or (b) impairing or affecting the liability of Guarantor or Pedcor Investments hereunder; from time to time, at its discretion and with or without consideration, may: (a) alter, compromise, accelerate, or extend the time or manner for the performance of the Construction Obligations or satisfaction of the Balance Requirements; (b) release, discharge, or increase the obligations of the Second Component Developer; (c) add, release, discharge,or increase the obligations of any other endorsers,sureties,guarantors,or other obligors; (d)make changes of any sort whatever in the terms or conditions of: (i) performance of the Construction Obligations or the satisfaction of the Balance Requirements; or(ii)doing business with the Second Component Developer or any other party; and (e) settle or compromise with the Second Component Developer or any other party on such terms and conditions as CRC may determine to be in its best interests. No exercise, or failure to exercise, by CRC of any right or remedy in any way shall: (a) affect: (i) any of the obligations of Guarantor or Pedcor Investments hereunder;or(ii)any collateral or security furnished by Guarantor or Pedcor Investments; or(b) give Guarantor or Pedcor Investments any recourse against CRC. 4. Continuing Liability. Notwithstanding the incapacity, death, disability, dissolution, or termination of the Second Component Developer or any other person or entity, the liability of Guarantor and Pedcor Investments hereunder shall continue. The failure by CRC to file or enforce a claim against the Second Component Developer or any other party shall not affect the liability of Guarantor or Pedcor Investments hereunder. Neither Guarantor nor Pedcor Investments shall be released from liability hereunder if recovery from the Second Component Developer or any other party: (a) becomes barred by any statute of limitations; or (b) otherwise is restricted, prevented, or unavailable. 5. Action by CRC. CRC shall not be required to pursue any other rights or remedies before invoking the benefits of this Guaranty. Specifically, CRC shall not be required to exhaust its rights and remedies against the Second Component Developer or any other surety,guarantor,or other obligor. CRC may maintain an action on this Guaranty, regardless of whether: (a) the Second Component Developer is joined in such action; or (b) a separate action is brought against the Second Component Developer. 6. Default-Construction. Guarantor absolutely and unconditionally covenants and agrees that, if the Second Component Developer defaults for any reason in the performance of all or any part of the Construction Obligations, then, upon demand, Guarantor shall: (a)complete, or cause the completion of, the construction of the Second Component on the Second Component Site in accordance with the Final Plans and the terms and conditions of the Second Component Project Agreement; and (b) reimburse CRC for all costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) incurred by CRC in: (i)exercising its rights and remedies under the Second Component Project Agreement in connection with the failure of the Second Component Developer to perform the Construction Obligations; and/or (ii) the enforcement of this Guaranty against the Guarantor;which costs and expenses shall bear interest at the rate of 12% per annum from the date incurred until the date paid; in all cases without: (a) further notice of default or dishonor; and (b) any notice with respect to any matter or occurrence having been given to Guarantor previous to such demand. 7. Out of Balance. Pedcor Investments absolutely and unconditionally agrees that if, at the end of any calendar quarter: (a) the percentage of the SC Bond Proceeds disbursed to fund construction of the Garage and the Second Component Public Improvements exceeds the percentage of completion of the Second Component, then, within 15 days after the end of such quarter, Pedcor Investments shall provide to CRC a plan pursuant to which, over a specified period of time, Pedcor Investments shall deposit with the Trustee funds that will be added to, and deemed to be, SC Bond Proceeds, which funds in the aggregate shall be in an amount sufficient so that, when such funds are added to the SC Bond Proceeds, the percentage of SC Bond Proceeds disbursed to fund construction of the Garage and the Second Component Public Improvements is equal to, or less than, the percentage of completion of the Second Component; and (b) CRC, in the exercise of its reasonable discretion, determines that the remaining undisbursed SC Bond Proceeds are insufficient to complete the Garage and the Second Component Public Improvements in accordance with the Second Component Final Plans, then, within 15 days after CRC notifies Pedcor Investments of such determination, Pedcor Investments shall provide to CRC a plan pursuant to which, over a specified period of time, Pedcor Investments shall deposit with the Trustee funds in an amount equal to the difference between: (i) the cost to complete the Garage and the Second Component Public Improvements in accordance with the Second Component Final Plans, as agreed by CRC and Pedcor Investments; minus (ii) the amount of the SC Bond Proceeds that remains undisbursed; which deposited funds shall be added to, and deemed to be a part of, the SC Bond Proceeds. Any plan required by this Section to be delivered by Pedcor Investments shall be subject to the reasonable approval of CRC, and, if a plan has been approved by CRC and implemented by Pedcor Investments, then all subsequent determinations with respect to whether the Balance Requirements have been satisfied shall take into account such plan and the compliance by Pedcor Investments therewith. 8. Representations. Each of Guarantor and Pedcor Investments represents and warrants to CRC that: (a)this Guaranty is the legal,valid, and binding obligation of Guarantor and Pedcor Investments in accordance with its terms and conditions; (b)there is no action or proceeding at law or in equity, or by or before any court or governmental instrumentality or agency, now pending against or, to the knowledge of Guarantor or Pedcor Investments, threatened against, Guarantor or Pedcor Investments that may materially and adversely affect the financial condition Guarantor or Pedcor Investments; (c) all balance sheets, earnings statements, and other financial data that have been or hereafter may be furnished to CRC in connection with this Guaranty do and shall represent fairly the financial condition of Guarantor and Pedcor Investments as of the dates on which, and for the periods for which, such balance sheets, earning statements, and other data are furnished; (d)all other information, reports,and other papers and data furnished to CRC shall be: (i)accurate and correct in all respects at the time given; and (ii) complete, such that CRC is given a true and accurate reporting of the subject matter; and (e) Guarantor and Pedcor Investments each is solvent. 9. Statements. Guarantor and Pedcor Investments shall provide to CRC, within ten days after receipt of a written request from CRC, financial statements that include such information and certifications with respect to the assets, liabilities, obligations, and income of Guarantor and/or Pedcor Investments as CRC reasonably may request from time to time. 10. Miscellaneous. The rights of CRC are cumulative and shall not be exhausted: (a) by its exercise of any of its rights and remedies against Guarantor or Pedcor Investments under this Guaranty or otherwise; or (b) by any number of successive actions; until and unless each and all of the obligations of Guarantor and Pedcor Investments under this Guaranty have been paid, performed, satisfied, and discharged in full. This Guaranty: (a) shall be deemed to have been made under, and shall be governed by, the laws of the State of Indiana in all respects; and (b) shall not be modified or amended, except by a writing signed by CRC, Guarantor, and Pedcor Investments. This Guaranty shall: (a) bind Guarantor, Pedcor Investments, and the successors, assigns, and legal representatives of Guarantor and Pedcor Investments; and (b) inure to the benefit of all transferees, credit participants, endorsees, successors, and assigns of CRC. If the status of the Second Component Developer changes,then this Guaranty shall:(a)continue;and(b)cover the Construction Obligations of the Second Component Developer in its new status; according to the terms and conditions hereof. CRC is relying, and is entitled to rely, upon each and every one of the terms and conditions of this Guaranty. Accordingly, if any term or condition of this Guaranty is held to be invalid or ineffective, then all other terms and conditions shall continue in full force and effect. IN WITNESS WHEREOF, Guarantor and Pedcor Investments have executed this Guaranty as of the 15th day of December, 2014. CARME ITY N , LLC By Printed: r (c CG ,(4 . - Title: t.e5■d-en,-t- - C 2 CCC 7T, LLC By: Printed: gr1ACPi ,4 Cori(%^4 (� Title: .1)Ca t(�e�Y '4" C40 CCC PHPE II, LLC r. By: /f Printed: 'v(UC& /r Lo1-11'1q PI' Title: P CSC deer /� PEDCOR INVESTMENT A LIMITED LIABILIT COMPANY By: Printed: gru�C 4 C'rd' Title: Pitt, dCn 7— `- J