HomeMy WebLinkAboutSecond Amendment to Construction, Easement, Restriction and Operating Agreement - AFP111 Corp.a
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SECOND AMENDMENT TO
CONSTRUCTION EASEMENT RESTRICTION AND OPERATING AGREEMENT
This Second Amendment to Construction, Easement, Restriction And Operating
Agreement (this "Amendment") is made and entered into effective as of , 2017
("Effective Date"), by and among AFP III Corp., ("AFP") a Delaware corporation, with its
principal office at 9 Park Place, 4`h Floor, Great Neck, NY 11021, PWA South Bend, LP, a
Pennsylvania limited partnership ("PWA"), a Minnesota limited partnership, with its principal
office at 4900 Perry Highway, Suite 300, Pittsburg, PA, 15229, the City of South Bend
Department of Redevelopment by and through the South Bend Redevelopment Commission (the
"Commission" or "Agency"), with its principal office at 1400 S. County -City Building, South
Bend, Indiana 44601, the City of South Bend, acting by and through its Board of Public Works,
with offices at 1300 N. County -City Building, South Bend, Indiana 46601, and The South Bend
Civic Center Board of Managers, with its principal office at 120 South St. Joseph Street, South
Bend, Indiana 46601.
WHEREAS, Jenna Hotel Investments, LLC, a Delaware limited liability company
("Jenna") and First Bank Center Limited Partnership, a Minnesota limited partnership
("Center"), previously were the parties to that certain Construction, Easement, Restriction and
Operating Agreement dated as of May 1, 1987, and recorded May 9, 1989, as Document No.
8911535 in the office of the Recorder of St. Joseph County, Indiana amended by the First
Amendment to Construction, Easement, Restriction and Operating Agreement dated August 4,
2011 and recorded August 11, 2011 as Document No. 112.0677 in the Office of the Recorder of
St. Joseph County, Indiana (the "Walkway Agreement"), pertaining to the operation,
maintenance, repair and of the Walkway, Century Center Access Corridor, Hotel Access
Corridor, Access Hall, Access Elevator and related on -site improvements (as defined in the
Walkway Agreement, and hereinafter referred to as "Walkway Elements"); and
WHEREAS, AFP has succeeded to Jenna's interests and has expressly assumed all
obligations of Jenna under the Walkway Agreement from and after the Effective Date; and
WHEREAS, AFP has expressly assumed all obligations of Jenna from and after the
Effective Date under that certain Operation, Maintenance and Easement Agreement dated as of
October 22, 1979, which was amended by a First Amendment thereto dated as of January 12,
1982, a Second Amendment thereto dated as of May 1, 1987, a Third Amendment dated as of
December 28, 2010, a Fourth Amendment dated August 4, 2011, and a Fifth Amendment dated
February 7, 2013 (collectively, the "Operations Agreement"), pertaining to the operation,
maintenance and repair of the Common Facilities (as defined in the Operations Agreement); and
WHEREAS, the parties wish to continue to provide for the operation, maintenance, repair
and use of the Walkway Elements, as hereinafter provided; and
WHEREAS, the parties hereto now desire to amend the Walkway Agreement.
NOW, THEREFORE, in consideration of the above, the parties agree as follows:
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43413-0015/135324970.4
l . The above recitals to this Amendment are hereby incorporated into and made a
part of this instrument.
2. All references to "Jenna" or any other immediate assignees or predecessors in
interest or title to Jenna, in the Walkway Agreement shall hereafter be amended to be "AFP."
3. Section 13 of the Walkway Agreement is hereby amended and restated as follows:
13. Notices. Any notice, demand, consent, approval, payment or other
document or instrument required or permitted to be served upon any of the parties hereto
shall be in writing and shall be either (i) delivered by hand, (ii) mailed by United States
registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable,
national overnight delivery service (e.g. Federal Express), or (iv) sent by facsimile or
email (tiOth the original being sent by one of the other permitted means or by regular
United States mail) and addressed to each party at the applicable address set forth
Herein. Any such notice, request, or other communication shall be considered given or
delivered, as the case may be, on the date of hand delivery (f delivered by hand), on the
third (3"d) day folloiving deposit in the United States mail (if sent by United States
registered mail), on the next business day following deposit ivith an overnight delivery
service with instructions to deliver on the next day or on the next business day (if sent by
overnight delivery service), or on the day ,rent by facsimile or email (if sent by facsimile
or email, provided the original is sent by one of the other permitted means as provided in
this paragraph or by regular United States mail).
Connnission and Agency: Executive Director
Department of Community Investment
227 West Jefferson Blvd. — Suite 1400 S.
South Bend, Indiana 46601
Facsimile: (574) 235-9021
With copies to: South Bend Legal Department
Attn: Corporation Counsel
227 West Jefferson Blvd Suite 1200 S
South Bend, IN 46601
Facsimile: (574) 235-7670
City: Executive Director
Department of Public Works
227 West Jefferson Blvd. — Suite 1300 N.
South Bend, Indiana 46601
Facsimile: (574) 235-9021
With copies to: South Bend Legal Department
Attn: Corporation Counsel
227 West Jefferson Blvd —Suite 1200 S.
South Bend, IN 46601
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434f 3-0015r 135324970.4
Facsimile: (574) 235-7670
AFP AFP III Corp.
9 Park Place, 41h Floor
Great Neck, New York 11021
(516) 466-6464
Attn: Michael McCurdy
Facsimile: (516) 829-4301
Email: Mmccurdy@unitedcapitalcorp. net
With a copy to: AFP III Corp.
9 Park Place, 4th Floor
Great Neck, New York H 021
(516) 466-6464
Attn: Rochelle Laufer, Esq.
Facsimile: (516) 829-4301
Email: Rlaufer@unitedcapitalcorp. net
PWA: PWA South Bend, LP
4900 Perry Highway, Suite 300
Pittsburgh, PA 15229
Attn:
Email:
With a copy to: Cressy & Everett
4100 Edison Lakes ParkAwy, Suite 350
Mishawaka, IN 46545
Attn: Nicole Read
Entail:
Board of Managers: The South Bend Civic Center
Board of Managers
Century Center
120 South St. Joseph Street
South Bend, Indiana 46601
Telephone: (574) 235-9711
Facsimile: (574) 235-9185
With copies to: South Bend Legal Department
Attn: Corporation Counsel
227 West Jefferson Blvd — Suite 1200 S.
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South Bend, IN 46601
Facsimile: (574) 235-7670
Any party hereto may change the name and address of the designee to
which notice shall be sent by giving written notice of such change to the
other parties as provided above and t0thout recording and amendment to
this Agreement.
4. The parties acknowledge assignment of the Walkway Agreement to AFP by
Jenna, and AFP expressly assumes all obligations of Jenna under the Walkway Agreement from
and after the Effective Date.
5. The South Bend Civic Center Building Authority ("Authority") has joined in the
execution of this Amendment to confirm that the Authority's agreement as to the matters
contained in Section 30 of the Walkway Agreement shall extend to and include the terms and
conditions of this Amendment.
6. This Amendment may be executed (by facsimile, digital or other electronic
means) in several counterparts, all or any of which shall be regarded for all purposes as one
original and shall constitute and be but one and the same instrument.
7. The Walkway Agreement remains in full force and effect and is in all respects
hereby ratified and affirmed, except as amended hereby.
8. Consistent with Section 28 of the Walkway Agreement, this Amendment shall be
recorded among the appropriate public records of the State of Indiana.
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43413-00151135324970.4
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment to
Construction, Easement, Restriction and Operating Agreement as of the date first above written.
PWA SOUTH BEND, LP., a
Pennsylvania limited partnership, as
successor to First Bank Center Limited
Partnership, a Minnesota limited
Partnership
By: _
Name:
Title:
Attest:
Name:
Title:
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43413-0015/135324970.4
AFP Ill CORP.,
a Delaware corporation
By:
Name:
Title:
Attest:
Name:
Title:
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43413-00151135324970A
SOUTH BEND REDEVELOPMENT
COMMISSION, as to itself and on behalf
of the City of South Bend Department of
Redevelopment
B
Name:
Title TYf
Attest:
NamelmaArE.
Title: I f Are In Jr
THE SOUTH BEND CIVIC CENTER
BOARD OF MANAGERS
By:
Name:
Title:
Attest:
Name:
Title:
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43413-0015/135324970.4
CITY OF SOUTH BEND, by its Board
of Public Worms
By; /'J"
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Name: G4g q A t
Title:
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Title: 11�0 -AR 0 Ot3AA13E-
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43413-0015/135324970.4
STATE OF )
ss:
Before me, the undersigned, a Notary Public in and for said State, personally appeared, and
acknowledged the execution of the foregoing Second Amendment to Construction, Easement,
Restriction And Operating Agreement on this _ day of , 2017.
Witness my hand and notarial seal.
(SEAL)
(Written Signature of Notary Public)
(Printed Signature)
My Commission Expires: _
My County of Residence is:
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43413-0015/ 135324970.4
STATE OF NEW YORK )
ss:
COUNTY OF }
Before me, the undersigned, a Notary Public in and for said State, personally appeared
, the President of AFP 111 Corp. and acknowledged the execution of
the foregoing Second Amendment to Construction, Easement, Restriction And Operating
Agreement on this _ day of , 2017.
Witness my hand and notarial seal.
(SEAL)
(Written Signature of Notary Public)
(Printed Signature)
My Commission Expires:
My County of Residence is:
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43413-0015/135324970.4
STATE OF INDIANA
ss:
ST. JOSEPH COUNTY
M
ore me, thp undersigned, a Notary Public in and for said State, personally appeared
, the 'Le A 4 � L of the South Bend Redevelopment
Commission, the governing body of the City of South Bend Department of Redevelopment, and
acknowledged the execution of the foregoing Second Amendment to Construction, Easement,
Restriction and Operating Agreement on this day of �, 2017.
MARY C. BRAIINSKY
SEAL) Seat
Notary Public - State of Indiana
St Joseph County
My Commission Expires Doe 12. 2024
Witness my hand and notarial seal.
{Written�ignature o Notary Public)
My Commission Expires: em bfr ?
My County of Residence is: A t- Sri
(I UN-1 OSKY
(Printed Signature)
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43413-0015/135324970.4
STATE OF INDIANA }
ss:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public in and for said State, personally appeared
, the of the South Bend Civic Center Board of
Managers, and acknowledged the execution of the foregoing Second Amendment to Operation,
Maintenance and Easement Agreement on this _ day of , 2017.
Witness my hand and notarial seal.
(SEAL)
(Written Signature of Notary Public)
(Printed Signature)
My Commission Expires:
My County of Residence is:
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43413-0015/ 13 5324970.4
STATE OF INDIANA
ss:
ST. JOSEPH COUNTY
Before me, the Nndersigned, a Notary Public in and for said State, personally appeared
8Vg G(Lo-r , the ESdO6yt , of the Board of Public Works of the City of South Bend, Indiana, and
acknowledged the execution of the foregoing Second Amendment to Construction, Easement,
Restriction and Operating Agreement on this q day of A�A q , 2017.
Witness my hand and notarial seal.
(SEAL)
CWr'tten Signature of Not4y Public)
//V Dot �, ��( [i-r tJ
LINDA M MARTIN
My Commission Expires: Notary Public = Seal
My County of Residence is: e of Indiana
OMMIsslsn Expires dun 28, 2020
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43413-0015/135324470A