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HomeMy WebLinkAbout6B (2)(0 6(-)-) FOURTH AMENDMENT TO OPERATION, MAINTENANCE AND EASEMENT AGREEMENT This Fourth Amendment to Operation, Maintenance and Easement Agreement (this "Amendment ") is made an entered into effective as of , 2011, by and among Jenna Hotel Investments, LLC ( "Jenna "), a Delaware limited liability company, with offices at One Ten James Street, Suite 102, Edmonds, Washington 98020 (successor to Rahn Properties II ( "Rahn "), South Bend Joint Venture and Host Hotels & Resorts, L.P. ( "Host ")), First Bank Center Limited Partnership ( "Center "), a Minnesota limited partnership, with its principal office at 4924 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (successor to 1st Source Corporation f/k/a FBT Bancorp, Inc. ( "1St Source ")), and 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 County -City Building, South Bend, Indiana 46601. WHEREAS, Rahn (predecessor to Jenna) and FBT Bancorp, Inc. (predecessor to Center), previously entered into that certain Operation, Maintenance and Easement Agreement dated as of October 22, 1979 (the "1979 Operations Agreement "), which was amended by a First Amendment thereto dated as of January 12, 1982, a Second Amendment thereto dated as of May 1, 1987, and a Third Amendment dated as of December 28, 2010 (collectively, the "Operations Agreement "), pertaining to the operation, maintenance and repair of the Common Facilities (as defined in the Operations Agreement); and WHEREAS, Host, 1st Source, the City of South Bend, Indiana (the "City ") and the Commission entered into that Garage Purchase Agreement fully executed on December 28, 2010, under which the Commission (or its designee or assignee) agreed to purchase Host's and 1St Source's interests in the Garage Facility (as defined in the Operations Agreement) (the "Garage Purchase "); and WHEREAS, Host conveyed its interests in the Garage Facility and the on -site. improvements related to the Garage Facility to the City, as evidenced by that certain Quit Claim Deed dated December 28,2010, and recorded December 30, 2010, as Document No. 1036706 in the office of the Recorder of St. Joseph County, Indiana; and WHEREAS, 1" Source conveyed its interests in the Garage Facility and the on -site improvements related to the Garage Facility to the City, as evidenced by that certain Quit Claim Deed dated December 28, 2010, and recorded December 30, 2010, as Document No. 1036705 in the office of the Recorder of St. Joseph County, Indiana; and WHEREAS, Is' Source conveyed its interests in the Atrium (as defined in the Operations Agreement) and the on -site improvements related to the Atrium to Center, as evidenced by that certain Quit Claim Deed dated December 28, 2010, and recorded December 30, 2010, as Document No. 1036710 in the office of the Recorder of St. Joseph County, Indiana; and {01651958.DOC;6 } WHEREAS, pursuant to that certain Assignment and Assumption of CFMA and CEROA dated as of December 28, 2011, by and between I" Source, as assignor, and Center, as assignee, Center assumed all of the duties, liabilities and obligations of Is` Source under (i) the Common Facilities Agreement (defined below, in Section 5), (ii) the Operations Agreement, and (iii) that certain Construction, Easement, Restriction and Operating Agreement dated May 1, 1987, by and between 1st Source, South Bend Joint Venture (f/k/a Rahn Properties II), the City, the Commission and The South Bend Civic Center Board of Managers (the "Walkway Agreement "); and WHEREAS, as required by Section 9 of the Operations Agreement, Jenna has expressly assumed all obligations of Host under the Operations Agreement; and WHEREAS, Jenna has expressly assumed all obligations of Host under the Walkway Agreement; and WHEREAS, the parties wish to continue to provide for the operation, maintenance and repair of the Common Facilities, as hereinafter provided; and WHEREAS, the parties hereto now desire to further amend the Operations Agreement. NOW, THEREFORE, in consideration of the above, the parties agree as follows: 1. The above recitals to this Amendment are hereby incorporated into and made a part of this instrument. 2. All references to "Rahn" or "South Bend Joint Venture" or "Host ", or any other intermediate assignees or predecessors in interest or title to Jenna, in the Operations Agreement shall hereafter be amended to be " Jenna." 3. Irrespective of the ownership of the Garage Facility, Jenna and Center shall continue to be jointly responsible for, and shall share the costs of, the operation, maintenance and repair of the Common Facilities as provided in the Operations Agreement. 4. Property, casualty and general liability insurance coverage for the Common Facilities shall be maintained in the current forms and amounts, and the Commission, as the owner of the Garage Facility, shall be named as an additional insured for so long as the Commission owns the Garage Facility. 5. The Common Facilities Management Agreement by and among Host (as successor to Rahn Properties II), Center (as successor to 1st Source (f/k/a FBT Bancorp, Inc.)) and Marriott Hotel Services, Inc. (successor Manager from Marriott Corporation) ( "Marriott "), dated November 1, 1981, as amended (the "Common Facilities Agreement "), was terminated prior to the effective date of this Amendment. Jenna and Center executed a new "Common Facilities Management Agreement" dated as of August , 2011, with South Bend CAM, LLC, a Delaware limited liability company, as the substitute Manager under the Operations Agreement. -2- {01651958DDOC;6 ) As the successor manager /operator of the Hotel, THG Management LV, LLC, a Delaware limited liability company, shall operate the Hotel as an "upscale" or "upper upscale" hotel (as those terms are defined in the Memorandum of Understanding dated as of December 3, 2010, and the Side Letter Regarding Memorandum of Understanding dated as of December 28, 2010). South Bend CAM, LLC shall assume management of the Garage Facility, or enter into a new operating or management agreement with a substitute garage management company acceptable to Jenna and Center. 6. Section 9 of the Operations Agreement is hereby amended and restated as follows: Section 9. Transfers of Interest in Project. Jenna and Center agree that any sale, transfer or assignment of all or a part of the respective parties' interest in the Hotel or Office Building, or in and to the Common Facilities, shall be subject to the terms of this Agreement, which shall be binding upon any transferee, assignee or successor in interest ( "Transferee'). The obligations set forth in this Agreement shall not be deemed to be personal to or binding upon any party to this Agreement, following the transfer in fee by such party, of its interest in the Property (or by assignment of such party's interest in its Ground Lease), to the extent permitted under this Agreement and the Ground Leases, provided that such Transferee has expressly assumed the obligations of the transferor or assignor ( "Transferor') under this Agreement, the Ground Leases, the Agreements for Conveyance and that certain Joint Development Agreement by and among City, Agency, Rahn and FBT Bancorp, Inc., dated as of October 1, 1979 (the "Joint Development Agreement'), with respect to the interest in the Property which is so transferred or assigned. If such Transferee so expressly assumes the obligations of the Transferor, then and in such event the other parties to this Agreement agree to release the Transferor from liability for any breach of the terms, provisions or conditions of this Agreement, the Ground Leases, the Agreements for Conveyance or of the Joint Development Agreement occurring prior to such transfer or assignment, provided such Transferor shall, upon not less than fifteen (1 S) days written notice, request the other parties to execute and deliver to such Transferor and its designated Transferee a certificate substantially in the form as attached hereto as Exhibit D. If any party transfers all or a portion of its interest in the Property to secure indebtedness by way of mortgage, deed of trust (or assigns its interest under its Ground Lease in connection with such mortgage or deed of trust) or in connection with the sale - leaseback financing transaction, and such party retains or acquires a possessory interest in the parcel so transferred, the owner of fee title to the parcel of such party in the case of a sale - leaseback financing transaction or the holder of such mortgage or deed of trust (or the assignee of the assignor's interest under its Ground Lease), as the case may be, shall not be deemed to have assumed the obligations of such party, it being agreed that such party shall remain liable for the performance thereof. 7. The Operations Agreement is hereby amended to include as Exhibit D, the document attached as Schedule 1 to this Amendment. -3- {01651958.DOC;6 ) 8. Section 17(g) of the Operations Agreement is hereby amended and restated as follows: (g) 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 (with 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 (if delivered by hand), on the third (3rd) day following deposit in the United States mail (if sent by United States registered mail), on the next business day following deposit with 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 sent by facsimile (if sent by facsimile, provided the original is sent by one of the other permitted means as provided in this paragraph or by regular United States mail). Commission and Agency: Mayor City of South Bend 1400 County-City Building South Bend, Indiana 46601 Telephone: (574) 235 -9241 Facsimile: (574) 235 -9892 with copies to: Charles Leone, City Attorney City of. South Bend 1400 County-City Building South Bend, Indiana 46601 Telephone: (574) 235 -5857 Facsimile: (574) 235 -9892 Richard A. Nussbaum, II 210 South Michigan Street 5th Floor - Plaza Building South Bend, Indiana 46601 Telephone: (574) 234 -3000 Facsimile: (574) 234 -4220 -4- {O)651958.DOC;6 } Jenna: Jenna Hotel Investments, LLC One Ten James Street, Suite 102 Edmonds, Washington 98020 Attention: Randy J. Meyer, CFO Telephone: (425) 771 -1788 Facsimile: (425) 672 -8280 Email: rmeyer@thehotelgroup.com with a copy to: Cairncross & Hempelmann 524 Second Avenue; Suite 500 Seattle, Washington 98104 Attention: Gregory J. Duff Tel. No.: (206) 587 -0700 Fax No.: (206) 587 -2308 Email: gdufj@cairncross.com Center: Bob Dunbar Chief Operating Officer - Asset Management Grubb & E1lislCressy & Everett 3930 Edison Lakes Parkway Suite 200 Mishawaka, 17V 46545 Telephone: (574) 271 -4060 Facsimile: (574) 271 -4292 with a copy to: Robert W Horstman First Bank Center Limited Partnership 4924 IDS Center 80 South Eighth Street Minneapolis, AN 55402 Telephone: (612) 204 -0647 Facsimile: (612) 338 -7079 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 hereto as provided above. 9. - The parties acknowledge assignment of the Operations Agreement to Jenna by Host, and Jenna expressly assumes all obligations of Host under the Operations Agreement. 10. The Agency has joined in the execution of this Amendment to confirm that the Agency's agreement as to the matters contained in Section 18 of the Operations Agreement shall extend to and include the terms and conditions of this Amendment. -5- (01651958.DOC;6 11. 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. 12. The Operations Agreement remains in full force and effect and is in all respects hereby ratified and affirmed, except as amended hereby. 13. Consistent with Section 16 of the Operations Agreement, this Amendment shall be recorded among the appropriate public records of the State of Indiana. -6- (01651958.DOC;6 } IN WITNESS WHEREOF, the undersigned have executed this Fourth Amendment of Operation, Maintenance and Easement Agreement as of the date first above written. FIRST BANK CENTER LIMITED PARTNERSHIP, a Minnesota limited partnership By: HUNTER, KEITH INDUSTRIES INC., Its General Partner Nam` � �--- Title: I =_~ Attest: a lZkl Name: Tyjl,'e A. Ludlmm" {01651958.DOC;6 } JENNA HOTEL INVESTMENTS, LLC, a Delaware limited liability company By: HOTEL GROUP OPPORTUNITY FUND IV, LLC, Its Member By: THG CAPITAL, LLC Its Ma By: Name: Rand M er Title:CFO M Attest: Name: a C. Schiewe Title: Legal Assistant By: SOUTH BEND HOTEL VENTURES, LLC, Its Member By: THG CAPITAL, LLC Its Manager Title:CFO Attest: Name: C. Schiewe Title: Legal Assistant -7- SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment c Name: Title: Attest: Name: Title: _g_ {01651958.DOC;6 } STATE OF MINNESOTA SS: HENNEPIN COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Robert W. Horstman, the Vice President — Finance of Hunter, Keith Industries Inc., General Partner of First Bank Center Limited Partnership, and acknowledged the execution of the foregoi g Fourth endment to Operation, Maintenance and Easement Agreement on this day f 2011. y Witness my hand and notarial seal. Wd (Written Signati (Printed Signature) My Commission Expires: I I I 1< My County of Residence is: SEAL DE_ — ,,;. ;, BRA K PAGE Notary Public Minnesota M Commission ExIves Januai 31, 2015 -9- {01651958.DOC;6 ) Notary Public STATE OF WASHINGTON) SS: KING COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Randy J. Meyer, the CFO of THG Capital,, LLC, Manager of Hotel Group Opportunity Fund IV, LLC and South Bend Hotel Ventures, LLC, the members of Jenna Hotel Investments, LLC, and acknowledged the execution of the foregoing Fourth Amendment to Operation, Maintenance and Easement Agreement on this 2nd day of August, 2011. jIness my hand and notarial seal. s' Ot�P �r9 4,�p�s = ritten Si at ) sn z' ►1 Q�'Z`�' (Printed Signature) h�q�t,����►���* Notary Public My Commission Expires: Febnaarx 10, 2 014 My County of Residence is: Kitsay -10- {01651958.DOC;6 } 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 Redevelopment Commission, and acknowledged the execution of the foregoing Fourth Amendment to Operation, Maintenance and Easement Agreement on this' day of , 2011. Witness my hand and notarial seal. (SEAL) My Commission Expires: _ My County of Residence is: -11- (01651958.DOC;6 ) (Written Signature) (Printed Signature) Notary Public SCHEDULEI EXHIBIT D TO OPERATION, MAINTENANCE AND EASEMENT AGREEMENT Schedule 1 -I- {01651958.DOC;6 } OPERATION, MAINTENANCE AND EASEMENT AGREEMENT [SOUTH BEND MARRIOTT] ESTOPPEL AND RELEASE Date: Reference is made to that certain Operation, Maintenance and Easement Agreement dated as of October 22, 1979, and recorded with the St. Joseph County, Indiana Recorder ( "Recorder ") as Instrument No. 8013310 on August 10, 1980, as amended by that certain First Amendment to Operation, Maintenance and Easement Agreement dated as of January 19, 1982, and recorded with the Recorder as Instrument No. 8213384 on September 2, 1982, as further amended by that certain Second Amendment to Operation, Maintenance and Easement Agreement dated as of May 1, 1987, and recorded with the Recorder as Instrument No. 9021586 on August 10, 1990, as further amended by that certain Third Amendment to Operation, Maintenance and Easement Agreement dated as of December 28, 2010, and recorded with the Recorder as Instrument No. 1036707 on December 30, 2010, and as further amended by that certain Fourth Amendment to Operation, Maintenance and Easement Agreement dated as of , and recorded with the Recorder as Instrument No. on (collectively, the "Easement "). 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 Easement. At the request of ( "Buyer "), in connection with its proposed acquisition of located at , South Bend, Indiana [Seller's Property], ( "Undersigned Party"), as owner of [Undersigned Party's Property], hereby certifies to (a) ( "Seller ") and (b) Buyer, as'follows: A. As of the date of this Estoppel and to Undersigned Party's best knowledge, Undersigned Party has fully complied with any and all installation, construction, maintenance, operation, repair, and replacement obligations contained in the Easement with respect to the [Undersigned Party's] Maintenance Area. B. As of the date of this Estoppel and to the actual knowledge of Undersigned Party, (a) based solely on day to day observations of the Common Facilities 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 the Management Agreement described in Section C of this Estoppel, Seller and Undersigned Party have fully complied with any and all installation, construction, maintenance, operation, repair, and replacement obligations contained in the Easement with respect to the Common Facilities, except for certain items described in the document entitled "Common Facilities Items Not in Good Condition or Repair," a copy of which is attached hereto as Exhibit A. In accordance with Section 3(d) of the Easement, Undersigned Party shall pay percent C _ %) of costs and expenses incurred by the Manager pursuant to the Easement and the Management Agreement described in Section C of this Estoppel to operate, maintain and repair the Common Facilities. To the extent the cost to correct the items listed in Exhibit A is payable pursuant to the Easement and the Management Agreement, Undersigned Party shall pay percent ( %) of the same. The statement set forth in this Section B specifically does not include any certification or Schedule 1 -2- (01651958.DOC;6 ) representation as to the obligations contained in the Easement as to the [Seller's Property], of which and for which Undersigned Party has no knowledge whatsoever. C. The Common Facilities Management Agreement dated as of , a copy of which is attached hereto as Exhibit B constitutes the "Management Agreement" contemplated by the Easement, is in full force and effect, and satisfies all requirements of the "Management Agreement" set forth in the Easement. D. As of the date of this Estoppel and to Undersigned Party's best knowledge, the use and operation of . [Undersigned Party's Property] by Undersigned Party is in full compliance with the requirements of the Easement. E. As of the date of this Estoppel and to the actual knowledge of Undersigned Party, based solely on day to day observations of the Common Facilities 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, the use and operation of the Common Facilities by Seller, Undersigned Party and , as Manager, are in full compliance with the requirements of the Easement. F. As of the date of this Estoppel and to Undersigned Party's best knowledge, Undersigned Party has no right to claim or establish a Default Lien against any portion of the Hotel Parcel, the Office Building Parcel or Common Facilities pursuant to the terms of the Easement. G. As of the date of this Estoppel, Undersigned Party has no actual notice of (without inquiry or investigation of any nature whatsoever), any reason why Seller has a right to claim or establish a Default Lien against any portion of the Hotel Parcel, the Office Building Parcel or Common Facilities pursuant to the terms of the Easement. H. As of the date of this Estoppel and to Undersigned Party's best knowledge, Undersigned Party is not in breach or default under the Easement and no event has occurred which, given notice, the passage of time or both, would constitute a breach or default by Undersigned Party under the Easement. I. As of the date of this Estoppel, Undersigned Party has no actual notice of (without inquiry or investigation of any nature whatsoever), (a) Seller's breach or default under the Easement, or (b) any event which may have occurred which, given notice, the passage of time or both, would constitute a breach or default by Seller under the Easement. J. 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 [Seller's Property] and (ii) the ground lessee's interest in the land underlying the [Seller's Property] by Buyer, and (b) the assignment to and unqualified assumption by Buyer of (i) the Easement and (ii) the ground lease Schedule 1 -3- 101651958.DOC;6 ) (dated ), Undersigned Party shall release Seller from any and all liability and obligation related to or arising out of the Easement. This certificate may be relied upon and shall inure to the benefit of Seller and Buyer and their respective successors, assigns, title companies and lenders, and shall be binding upon the undersigned and its successors and assigns. [Signature Page Follows] Schedule 1 -4- (01651958.DOC;6 ) IN WITNESS WHEREOF, the Undersigned Party has duly executed this certificate as of the year and date first above written. By: Name: Title: Date: Schedule 1 -5- (01651958.DOC;6 ) CERTIFICATION AND RELEASE (Operation, Maintenance and Easement Agreement Estoppel and Release) At the request of ( "Buyer "), in connection with its proposed acquisition of located at South Bend, Indiana, the South Bend Redevelopment Commission hereby certifies to Seller and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Operation, Maintenance and Easement Agreement Estoppel Certificate and Release by , 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 and the ground lessee's interest in the land underlying by Buyer, and assignment and written assumption of the Easement and ground lease (dated ) to Buyer, Seller shall be released from any and all liability and obligation related to or arising out of the Easement (as defined in the Estoppel Certificate). SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment By: Name: Title: Date: Schedule 1 -6- (01651958.DOC;6 )