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HomeMy WebLinkAbout6B(7) 7 Ai5���k eE'Ya % „� �%% Department of €^N�� , , Vie: • ��rFwcE��ti >, ', a:_ Community Investment 1865';;.:' Memorandum September 25, 2014 TO: Redevelopment Commission FROM: Chris Fielding, Director of Business Development SUBJECT: Blackthorn Golf Course Disposition Faithful Performance Guaranty As part of the disposition of the Blackthorn Golf Course, a 10% Faithful Performance Guaranty is required for a bid to be considered conforming. Because of the size of the potential bids, and the length of time the Guaranty could be held, certain potential bidders have asked if a personal guaranty would be considered. Per the published Notice of Intended Disposition of Property, the "guaranty sum may be in the form of a certified check, a cashier's check, or surety bond, letter of credit from a bank or trust company as approved by the Redevelopment Commission, or by other sufficient security, but the form, substance and terms of the performance guaranty must be approved as satisfactory by the Redevelopment Commission." Staff feels the attached Personal Guaranty, or one substantially in this form, meets the standard of "other sufficient security", and requests Commission approval of its "form, substance, and terms", including as a Corporate Guaranty subject to the Commission's counsel. Staff also requests that upon receipt of any guarantees received, they be able to determine if further investigation is required, and request financial statements to ensure there are adequate assets to cover the amount of the guaranty. 227 W.JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574-235-9021 I SOUTHBENDIN.GOV PERSONAL GUARANTY THIS GUARANTY (this "Guaranty") is dated as of , 2014 by ("Guarantor"), to and for the benefit of South Bend Redevelopment Commission, ("Commission"), its successors and assigns. A. The Commission has determined it is in the best interest of the community to sell certain property located at 6100 Nimtz Parkway and commonly known as the `Blackthorn Golf Course" (the "Property"), in the Airport Economic Development Area, South Bend, Indiana, and has previously approved an offering sheet to provide for the disposition of the Property(the"Offering Sheet"). B. The Commission is now accepting proposals from the public to purchase the Property for the required use as a public 18-hole golf course and clubhouse as set forth in the Offering Sheet made available by the Commission, subject to restrictions as referenced in "An Agreement Among the South Bend Redevelopment Authority, the South Bend Redevelopment Commission, and the St. Joseph County Airport Authority for the Operation and Management of Blackthorn Golf Course, dated October 8, 1992." C. [ /Guarantor] (the "Bidder") has submitted the required bid forms and other pertinent information (collectively, the "Proposal") to the Commission for the Commission's consideration. D. To secure the execution of a disposition agreement between the Commission and the Bidder (the "Agreement") to provide for the purchase of the Property and use thereof in accordance with the Offering Sheet and the terms of the Agreement, the Commission requires the Guarantor to submit a faithful performance guaranty in the amount of ten percent (10%) of the proposed purchase price provided in the Proposal which the Commission has determined may be satisfied by the execution of a Personal Guaranty by or on behalf of the Bidder. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby are acknowledged, Guarantor agrees as follows: 1. Amount of Guaranty. This is a guaranty of payment of the faithful performance guaranty of ten percent (10%) of the amount offered for the purchase of the Property set forth in the Proposal ("Faithful Performance Amount"). The Faithful Performance Amount is equal to Dollars ($ ). 2. Guaranty. Guarantor unconditionally and irrevocably guarantees and promises the punctual payment of the Faithful Performance Amount in legal tender of the United States of America by the Bidder on demand by the Commission if the Bidder is selected by the Commission as the winning bidder, and the Commission determines, in its sole discretion, that the Bidder is not able or willing to enter into the Agreement and conclude the sale of the Property as contemplated by the Offering Sheet on the terms and conditions set forth in this Guaranty. US.54897021.03 3. Nature of Guaranty. Guarantor intends to guarantee at all times the performance and prompt payment when due of the Faithful Performance Amount within the limits set forth in the preceding section of this Guaranty. 4. Duration of Guaranty. This Guaranty will take effect when received by the Commission and the Commission resolves to sell the Property to the Bidder, without any notice to Guarantor, and will continue in full force until the later of the Agreement is executed by the Bidder and the sale of the Property to the Bidder is completed pursuant to the terms of the Agreement or the Faithful Performance Amount is paid in full by the Bidder. 5. Guarantor's Representations and Warranties. Guarantor represents and warrants to Commission that (a) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (b) Guarantor has full power, right and authority to enter into this Guaranty; and (c)the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor. Guarantor agrees to keep the Commission adequately informed of any facts, events, or circumstances which might in any way affect the Commission's risks under this Guaranty. 6. Guarantor's Financial Records. Upon request by the Commission (or its directors, officers, employees, agents or representatives), Guarantor shall provide the Commission (or its directors, officers, employees, agents or representatives) any requested financial statements, books or records (collectively, the "Financial Records") for the sole purpose of permitting the Commission to determine whether or not the Commission will accept this Guaranty as part of the Proposal submitted by the Bidder. The Commission (or its directors, officers, employees, agents or representatives) shall not disclose to any person or entity such Financial Records except as and to the extent required by law, including but not limited to the Indiana Access to Public Records law at Indiana Code 5-14-3, or pursuant to an order of a court of competent jurisdiction. 7. Insolvency. If Guarantor shall become insolvent (however defined), Commission shall have the right to declare all obligations payable under this Guaranty immediately due and payable, and the Guarantor shall forthwith pay to Commission the full amount due hereunder, whether due and payable or unmatured. If Guarantor voluntarily commences or there is commenced involuntarily against the Guarantor a case under the United States Bankruptcy Code, the full amount due by Guarantor hereunder, whether due and payable or unmatured, shall become immediately due and payable without demand or notice thereof. 8. Guarantor's Waivers. Guarantor unconditionally waives all notices which may be required by statute, rule of law or otherwise, including, without limitation, any demand, presentment and protest, proof of notice of non-payment or non-performance under the Guaranty, and any failure on the part of Guarantor to perform or comply with any covenant, agreement,term or condition of the sale of the Property. Guarantor waives any and all defenses, claims and discharges of the Bidder pertaining to the Faithful Performance Amount, except the defense of discharge of payment in full. 9. Enforcement Costs. If(a) this Guaranty is placed in the hands of one or more attorneys for collection or is collected through any legal proceeding; (b) one or more attorneys is retained US.54897021.03 to represent the Commission in any bankruptcy, reorganization, receivership or other proceedings affecting creditors' rights and involving a claim under this Guaranty, or (c) one or more attorneys is retained to represent the Commission in any other proceedings whatsoever in connection with this Guaranty, then Guarantor shall pay to the Commission upon demand all fees, costs and expenses incurred by the Commission in connection therewith, including, without limitation, reasonable attorneys' fees, court costs and filing fees (all of which are referred to herein as "Enforcement Costs'), in addition to all other amounts due hereunder. 10. Miscellaneous Provisions. The following miscellaneous provisions are a part of this Guaranty: (a) Amendments. This Guaranty, together with any related documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law. This Guaranty shall be governed by and construed in accordance with the laws of Indiana. (c) Notices. All notices required to be given by either party to the other under this Guaranty shall be in writing, may be personally delivered or sent by electronic mail or tele facsimile (unless otherwise required by law), and shall be effective when actually delivered or when deposited with a nationally recognized overnight courier, addressed to the party to whom the notice is to be given at the address shown above or to such other addresses as either party may designate to the other in writing. For notice purposes, Guarantor agrees to keep Commission informed at all times of Guarantor's current address. (d) Successors and Assigns. This Guaranty shall inure to the benefit of the Commission and its successors and assigns. This Guaranty shall be binding on Guarantor and the respective successors and assigns of Guarantor. It is agreed that the liability of Guarantor hereunder is independent of any other guarantees or other obligations at any time in effect with respect to Guarantor's obligations, and that liability of Guarantor may be enforced regardless of the existence, validity, enforcement or non-enforcement of any other guarantees or other obligations. (e) Waiver. Commission shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Commission. No delay or omission on the part of Commission in exercising any right shall operate as a waiver of such right or any other right. A waiver by Commission of a provision of this Guaranty shall not prejudice or constitute a waiver of Commission's right otherwise to demand strict compliance with that provision or any other provisions of this Guaranty. No prior waiver by Commission, nor any course of dealing between Commission and Guarantor, shall constitute a waiver of any of Commission's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Commission is required under this Guaranty, the granting of such consent by Commission in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Commission. US.54897021.03 THE UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, THE GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO COMMISSION AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY." NO FORMAL ACCEPTANCE BY COMMISSION IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. US.54897021.03 IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written. GUARANTOR: (Signature) Printed US.54897021.03