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HomeMy WebLinkAboutCompletion Guaranty/Eastern Motor Court 02-18-15 COMPLETION GUARANTY Eastern Motor Court Component Porti&r, his Completion Guaranty(Eastern Motor Court Component)(the"Guaranty"),executed this j, day of�, 2015, by CCC West, LLC, and CCC Phase II, LLC (jointly and severally, the"Guarantor"), in favor of The City of Carmel Redevelopment Commission ("CRC"), Witnesses: Recitals WHEREAS, CRC, Carmel City Center, 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 West, LLC (the "Eastern Motor Court Developer"), have executed that certain Project Agreement (Eastern Motor Court Component) of even date herewith (the "Eastern Motor Court Project Agreement"); WHEREAS, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Eastern Motor Court Project Agreement; WHEREAS,pursuant to the Eastern Motor Court ProjectAgreement,the Eastern Motor Court Developer is obligated to construct the Eastern Motor Court Component on the Eastern Motor Court Component Site in accordance with the Eastern Motor Court Component Final Plans; WHEREAS, this Agreement is the "Eastern Motor Court Completion Guaranty" required to be executed pursuant to the Second Component Project Agreement; WHEREAS, "Obligations" shall mean the obligations of the Eastern Motor Court Developer under the Eastern Motor Court Project Agreement with respect to the construction of the Eastern Motor Court Component on the Eastern Motor Court Component Site in accordance with the Eastern Motor Court Component Final Plans and the terms and conditions of the Eastern Motor Court 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 Eastern Motor Court Project Agreement, CRC elects to require the reconveyance of the Eastern Motor Court Component Site, then, at the time that the Eastern Motor Court 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 Eastern Motor Court Project Agreement; or(iii) bringing suit against the Eastern Motor Court 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 Eastern Motor Court Developer to timely perform the Obligations; or (b) to use diligence in: (i) preserving the liability the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court Developer or any other party; and (e) settle or compromise with the Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court 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 Eastern Motor Court Developer or any other surety, guarantor, or other obligor. CRC may maintain an action on this Guaranty, regardless of whether: (a) the Eastern Motor Court Developer is joined in such action; or (b) a separate action is brought against the Eastern Motor Court Developer. 6. Default. Guarantor absolutely and unconditionally covenants and agrees that, if the Eastern Motor Court 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 Eastern Motor Court Component on the Eastern Motor Court Component Site in accordance with the Eastern Motor Court Component Final Plans and the terms and conditions of the Eastern Motor Court 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 Eastern Motor Court Project Agreement in connection with the failure of the Eastern Motor Court 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 Eastern Motor Court Developer changes, then this Guaranty shall: (a) continue; and (b) cover the Obligations of the Eastern Motor Court 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. r.„,0 Y IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of this lee day of , 2015. CCC WEST, LLC By: Printed: a/ucc A C rot;r / Title: Dreg i d e,-t- CCC PHA E II, LLC By: e Printed: grace. At Card:99 J (, / Title: ( et i 4 re-r- re-r-