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HomeMy WebLinkAbout6D (4)C, 't�,<<() THG Revisions: 7/1/2011 CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT [SOUTH BEND MARRIOTT] ESTOPPEL AND RELEASE Date: July , 2011 Reference is made to that certain Construction, Easement, Restriction and Operating Agreement dated as of May 1, 1987, and recorded with the St. Joseph County, Indiana Recorder ( "Recorder ") as Instrument No. 8911535 on May 9, 1989 (the "Walkway Agreement "). All terms and words of art used herein, as indicated by the initial capitalization thereof, shall have the same respective meanings designated for such terms and words of art in the Walkway Agreement. At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company ( "Buyer "), in connection with its proposed acquisition of the Marriott Hotel located at 123 North St. Joseph Street in South Bend, Indiana, First Bank Center Limited Partnership, a Minnesota limited partnership ( "FBCLP "), hereby certifies to (a) Host Hotels & Resorts, L.P., a Delaware limited partnership ('Host ") and (b) Buyer, as follows: A. The Walkway Agreement is in full force and effect and has not been amended or otherwise modified, in writing or orally. B. As of the date of this Estoppel and to the actual knowledge of FBCLP, (a) based solely on day to day observations of the Walkway, Hotel Access Corridor, Access Hall, and Access Elevators (collectively, "Walkway Elements'l and (b) without further investigation, inspection or inquiry of any nature whatsoever and (c) in complete reliance upon the appointment of a manager pursuant to that certain Common Facilities Management Agreement dated as of November 1, 1981, as amended by that certain First Amendment to Common Facilities Management Agreement dated as of November 30, 1982, as further amended by that certain Second Amendment of Common Facilities Management Agreement dated as of October 30, 1986, as further amended by that certain Third Amendment of Common Facilities Management Agreement dated as of May 1, 1987, a copy of which is attached hereto as Exhibit A Host and FBCLP have fully complied with any and all installation, construction, maintenance, operation, repair, replacement, insurance and expense obligations contained in the Walkway Agreement, including without limitation, obligations with respect to the Walkway Elements, except for certain items deschbed in the document entitled "Common Facilities Items Not in Good Condition or Repair," a copy of which is attached hereto as Exhibit B. In accordance with Section 5(c) of the Walkway Agreement, FBCLP shall pay thirty percent (30 %) of the costs and expenses incurred by the Board of Managers to operate, maintain and repair the Walkway pursuant to the Walkway Agreement. To the extent the cost to correct any items listed in Exhibit B is payable pursuant to the Walkway Agreement, FBCLP shall pay thirty (30 %) of the same. The statement set forth in this Section B specifically does not include any certification Walkway Agreement 1- D0CS- #3469822- v2 {0163M8.D0C;7 j Error! Unknown document property name. or representation as to the obligations contained in the Walkway Agreement as to the Hotel (other than the Walkway Elements), of which and for which FBCLP has no knowledge whatsoever. C. As of the date of this Estoppel and to the best knowledge of FBCLP, the use and operation of the Office Building is in full compliance with the requirements of the Walkway Agreement. D. As of the date of this Estoppel and to the actual knowledge of FBCLP, based solely on day to day observations of the Walkway Elements and without further investigation, inspection or inquiry of any nature whatsoever and in complete reliance upon the appointment of a manager pursuant to the Management Agreement, (a) the use and operation of the Walkway Elements by Host, FBCLP and Marriott Hotel Services, Inc., as successor to Marriott Corporation, as Manager, are in full compliance with the requirements of the Walkway Agreement, and (b) all improvements located in or on the Office Building comply in all respects with all of the Walkway Agreement requirements applicable thereto. E. As of the date of this Estoppel and to FBCLP's best knowledge, FBCLP has no right to claim or establish any lien against any portion of the Hotel, the Office Building or First Bank Center Common Facilities pursuant to the terms of the Walkway Agreement. F. As of the date of this Estoppel, FBCLP has no actual notice of (without inquiry or investigation of any nature whatsoever), any reason why Host has a right to claim or establish a lien against any portion of the Hotel, the Office Building or First Bank Center Common Facilities pursuant to the terms of the Walkway Agreement. G. As of the date of this Estoppel and to FBCLP's best knowledge, FBCLP is not in breach or default under the Walkway Agreement, and no event has occurred which, given notice, the passage of time or both, would constitute a breach or default by FBCLP under the Walkway Agreement. H. As of the date of this Estoppel, FBCLP has no actual notice of (without inquiry or investigation of any nature whatsoever), (a) Host's breach or default under the Walkway Agreement, or (b) any event which may have occurred which, given notice, the passage of time or both, would constitute a breach or default by Host under the Walkway Agreement. 1. The individual executing this certificate on behalf of the undersigned entity is the authorized signatory of such entity, and as such has full power and authority to bind such entity. Upon (a) the closing of the sale of (i) the Hotel and (ii) the ground lessee's interest in the land underlying the Hotel by Buyer; (b) execution by all appropriate parties of that certain Amendment to the Walkway Agreement regarding the release of future parties transferring their interest in the Walkway Agreement, and (c) the assignment to and unqualified assumption by Buyer of (i) the Walkway Agreement and obligations arising thereunder and (ii) the hotel ground -2- ROCS- 1{3469822 -v2 101630998.DOC;7 } Error! Unknown document property name. lease (dated October 16, 1979), FBCLP shall release Host from any and all liability and obligation related to or arising out of the Walkway Agreement. This certificate may be relied upon and shall inure to the benefit of Host and Buyer and their respective successors, assigns, title companies and lenders, and shall be binding upon the undersigned and its successors and assigns. [Signature Pages Follow] -3- DOC 43469822 -v2 {01630998.DOC;7 ) Error! Unknown document property name. IN WITNESS WHEREOF, the FBCLP has duly executed this certificate as of the year and date first above written. FIRST BANK CENTER LIMITED PARTNERSHIP By: HUN KEITH INDUSTRIES, INC., Its eneral Part er By: Name: 1 obert W. Horstlnan Title: Vice President — Finance -4- D00843469822- v2 {01630998.D0C;5 } Error! Unknown document property name. CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) ' At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company ("Buyer'), in connection with its proposed acquisition of the Marriott South Bend Hotel located at 123 North St. Joseph Street in South Bend, Indiana, the South Bend Redevelopment Commission hereby certifies to Host and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by FBCLP Center Limited Partnership, and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects.. Upon the closing of the sale of the Hotel and the ground lessee's interest in the land underlying the Hotel by Buyer, and upon Buyer's assumption in writing of all of Host's rights, duties, and obligations under the Walkway Agreement, Host shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment By: Name: Title: Date: Attest: Name: Title: D0CS- #3469822 -v2 f01630998.DOC;7 j Error! Unknown document property name. CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company (`Buyer "), in connection with its proposed acquisition of the Marriott South Bend Hotel located at 123 North St. Joseph Street in South Bend, Indiana, the City of South Bend, an Indiana municipal corporation acting by and through its Board of Public Works hereby certifies to Host and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by FBCLP Center Limited Partnership, and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. Upon the closing of the sale of the Hotel and the ground lessee's interest in the land underlying the Hotel by Buyer, and upon Buyer's assumption in writing of all of Host's rights, duties, and obligations under the Walkway Agreement (as defined in the foregoing Estoppel Certificate), Host shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. CITY OF SOUTH BEND, by its Board of Public Works By: Name: Title: Date: By: Name: Title: Date: By: Name: Title: Date: Attest: Name: Title: -6- {01630998.DM;9 } Error! Unknown document property name. CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company ( "Buyer "), in connection with its proposed acquisition of the Marriott South Bend Hotel located at 123 North St. Joseph Street in South Bend, Indiana, The South Bend Civic Center Board of Managers hereby certifies to Host and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by FBCLP Center Limited Partnership, and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. Upon the closing of the sale of the Hotel and the ground lessee's interest in the land underlying the Hotel by Buyer, and upon Buyer's assumption in writing of all of Host's rights, duties, and obligations under the Walkway Agreement (as defined in the foregoing Estoppel Certificate), Host shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. SOUTH BEND CIVIC CENTER BOARD OF MANAGERS By: Name: Title: Date: -7- {01630"8.D0C;7 } Error? Unknown document property name. EXHIBIT A Management Agreement [See following pages] -8- {01630998.DOC;7 } Error! Unknown document property name. EXHIBIT B Common Facilities Items Not in Good Condition or Repair Exterior: 1. Numerous dead shrubs are located along the walkways and should be replaced. 2. At least three trees appear to have died over the winter and one is missing completely — all of which should be replaced. 3. A tree continues to flourish (not intentionally planted) on the grass terrace outside the restaurant and should be removed. 4. Various handrails are corroded and require repainting. 5. A very large dirt filled planter is sitting on a suspended walkway, which is a dangerous condition likely to result in damage or harm. Garag : 6. An open drain pipe in the parking garage is not assisting in draining the clogged drain shown in the upper right of that photograph. A close -up of that clogged drain is shown in the accompanying photograph that also shows water still dripping from the concrete above and the start of what will surely be spalling of the concrete in that area. One should not dismiss the significance of this photograph, as it is of a pipe coming from the drain pan beneath the sidewalk pavers. As you can see in the previous photograph (oversized planter), vegetation is growing out of the drain pan. 7. Water leaking from the maintenance room was recently observed. 8. There are numerous pictures of drains on the parking deck that show damage to the membrane and/or concrete from standing water. Unfortunately, even though the Bank has repeatedly reported the problem of clogged drains and the damage that can result, you see from the photos that most continue to remain clogged. 9. Last Thursday or Friday, a bank employee tripped over one of the sidewalk pavers and broke her wrist. Atrium: 10. The roof in the atrium continues to leak, as evidenced during last week's (and prior) storms. 11. The atrium HVAC system may require repair due to historical problems. As of the date of this Estoppel, the HVAC system appears to be operating, but sufficient time has not occurred to confirm that condition. SEE additional 21 pages of photographs, attached. JOJ630998.DOC;7 ) (01630998.UOC;7 )