HomeMy WebLinkAboutCompletion Guaranty/Wren Component 02-18-15 COMPLETION GUARANTY
Wren Component
Febrwl This Completion Guaranty (Wren Component) (the "Guaranty"), executed this L day of
, 2015, by CCC Phase II, LLC (the "Guarantor"), in favor of The City of Carmel Redevelopment
Commission ("CRC"), Witnesses:
Recitals
WHEREAS, CRC, Carmel City Center, LLC, CCC West, LLC, and Guarantor have executed
that certain Project Agreement (Second Component/Park East/Second Component Public improvements)
dated December 15, 2014 (the"Second Component Project Agreement");
WHEREAS,as contemplated pursuant to the Second Component Project Agreement,CRC
and CCC Phase II, LLC (the "Wren Developer") have executed that certain Project Agreement (Wren
Component) of even date herewith (the"Wren Project Agreement");
WHEREAS, all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Wren Project Agreement;
WHEREAS, pursuant to the Wren Project Agreement, the Wren Developer is obligated to
construct the Wren Component on the Wren Component Site in accordance with the Wren Component Final
Plans;
WHEREAS, this Agreement is the "Wren Completion Guaranty" required to be executed
pursuant to the Second Component Project Agreement;
WHEREAS, "Obligations"shall mean the obligations of the Wren Developer under the Wren
Project Agreement with respect to the construction of the Wren Component on the Wren Component Site in
accordance with the Wren Component Final Plans and the terms and conditions of the Wren Project
Agreement; and
WHEREAS, Guarantor is 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 covenant and agree as follows:
1. Guarantee. Guarantor absolutely and unconditionally guarantees the full and prompt performance
of the Obligations. This Guaranty shall continue in full force and effect until all of the Obligations are
performed in full; provided that if, pursuant to Section 8 of the Wren Project Agreement, CRC elects to require
the reconveyance of the Wren Component Site,then,at the time that the Wren Component Site is reconveyed
to CRC, this Guaranty automatically shall terminate and be of no further force or effect.
2. Waivers. Guarantor expressly waives: (a) demand, notice of demand and dishonor, protest, and
notice of protest and nonperformance of the Obligations; and (b) diligence in: (i) enforcing the Obligations;
(ii)the exercise of rights or remedies under the Wren Project Agreement; or(iii)bringing suit against the Wren
Developer or any other party. CRC shall be under no obligation: (a)to notify Guarantor of: (i) its acceptance
of this Guaranty; or (ii) the failure of the Wren Developer to timely perform the Obligations; or (b) to use
diligence in: (i) preserving the liability the Wren Developer or any other party; or (ii) bringing suit to enforce
performance of the Obligations. To the full extent allowed by applicable law, Guarantor waives all defenses:
(a)given to sureties or Guarantor at law or in equity,other than the actual performance of the Obligations; and
(b) based upon questions as to the validity, legality, or enforceability of the Obligations. Guarantor
unconditionally waives: (a) any claim or other right now existing or hereafter arising against the Wren
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;and/or(b)impairing or affecting
the liability of Guarantor 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 Obligations;
(b) release, discharge, or increase the obligations of the Wren Developer; (c) add, release, discharge, or
increase the obligations of any other endorsers, sureties, Guarantor, or other obligors; (d) make changes of
any sort whatever in the terms or conditions of: (i) performance of the Obligations; or(ii) doing business with
the Wren Developer or any other party; and (e) settle or compromise with the Wren 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
hereunder; or(ii)any collateral or security furnished by Guarantor; or(b)give Guarantor any recourse against
CRC.
4. Continuing Liability. Notwithstanding the incapacity, death, disability, dissolution, or termination of
the Wren Developer or any other person or entity, the liability of Guarantor hereunder shall continue. The
failure by CRC to file or enforce a claim against the Wren Developer or any other party shall not affect the
liability of Guarantor hereunder. Guarantor shall not be released from liability hereunder if recovery from the
Wren 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 Wren Developer or any other surety, guarantor, or other obligor. CRC may maintain an action on
this Guaranty, regardless of whether: (a)the Wren Developer is joined in such action; or(b)a separate action
is brought against the Wren Developer.
6. Default. Guarantor absolutely and unconditionally covenants and agrees that, if the Wren Developer
defaults for any reason in the performance of all or any part of the Obligations,then, upon demand,Guarantor
shall: (a) complete, or cause the completion of, the construction of the Wren Component on the Wren
Component Site in accordance with the Wren Component Final Plans and the terms and conditions of the
Wren 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 Wren Project Agreement in connection with the failure of the Wren Developer to perform the 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. Representations. Guarantor represents and warrants to CRC that: (a) this Guaranty is the legal,
valid, and binding obligation of Guarantor 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, threatened against, Guarantor that may materially and
adversely affect the financial condition Guarantor; (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 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 is solvent.
8. Statements. Guarantor 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 as CRC reasonably may request from time to time.
9. 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 under this Guaranty or otherwise; or (b) by any number of
successive actions; until and unless each and all of the obligations of Guarantor 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 and Guarantor. This Guaranty shall: (a) bind
Guarantor and its successors, assigns, and legal representatives; and (b) inure to the benefit of all
transferees, credit participants, endorsees, successors, and assigns of CRC. If the status of the Wren
Developer changes, then this Guaranty shall: (a) continue; and (b) cover the Obligations of the Wren
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.
rtiorsqVI IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the IP day of
de-ry, 2015.
CCC PHASE II, LLC'
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