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HomeMy WebLinkAbout6B (5)(P 12 ( s) FIRST AMENDMENT TO PARKING AGREEMENT This First Amendment to Parking Agreement ( "First Amendment ") is entered into as of this day of 1 2011 by and between the CITY OF SOUTH BEND, INDIANA, DEPARTMENT OF REDEVELOPMENT, acting by and through the SOUTH BEND REDEVELOPMENT COMMISSION (the "Commission'), and STEPHENSON MILL ASSOCIATES, LLC, a Wisconsin limited liability company ( "SMA "). WITNESSETH: WHEREAS, Commission and SMA entered into that certain Agreement to Lease (as amended, the "Agreement ") dated effective September 2, 1994 pertaining to the lease by SMA of a certain parcel on which Commission subsequently completed improvements (the "Parking Lot "), such Parking Lot providing paved parking for SMA's multi - family housing project adjoining the Parking Lot (the "Stephenson Mill Project Site "); and WHEREAS, SMA has applied for a mortgage loan to be insured by the U.S. Department of Housing and Urban Development with respect to the Stephenson Mill Project Site (the "Refinancing ") and in connection therewith, the lender providing the Refinancing, St. James Capital, L.L.C. ( "Lender"), has conditioned the Refinancing upon an extension of the term of the Agreement, thereby making the termination date of the Agreement the last day of the year that the Refinancing matures, and converting the interest of the SMA to an easement interest; and WHEREAS, in order to satisfy the Lender's above - described requirement in connection with the Refinance, SMA has requested and Commission has agreed to modify the Agreement on and subject to the terms contained in this First Amendment; NOW, THEREFORE, in consideration of the foregoing and for other consideration, the receipt and sufficiency of which are hereby acknowledged, Commission and SMA agree that the Agreement is hereby amended as follows: 1. Capitalized Terms. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. All references to "Heartland" or "Heartland Fund Management, Inc." in the Agreement shall be removed and replaced with "Housing Horizons, LLC ", the new managing member of the SMA. 2. Extension of Agreement Term. The Agreement is currently due to expire on September 1, 2024. The parties hereby agree that Term of the Agreement shall be extended to December 31, 2046. Upon the closing and funding of the Refinancing (the "Closing "), the parties hereto shall enter into a recordable Grant of Easement confirming the extended Term of the Agreement and the SMA's option to purchase rights as provided below in Section 3 hereof. The parties agree to and shall execute the Grant of Easement and deliver the same into escrow with the title company selected by Lender with instructions to record the Grant of Easement upon the Closing. Notwithstanding anything to the contrary herein, the effectiveness of this First Amendment is conditioned upon the closing and funding of the Refinancing no later than December 31, 2011. If such closing and funding has not occurred on or before such date, the terms and conditions of this First Amendment shall be null and void. 3. Option to Purchase. Section 21.01 of the Agreement is hereby amended to provide that SMA's option to purchase may be exercised, at SMA's option, upon the new expiration date of the Agreement (as amended above in Section 2) upon the payment of the $1,000.00 purchase price. 4. No Defaults. Commission and SMA each represent and warrant that there are no uncured defaults under the Agreement and that to the extent either party previously failed to perform an obligation under the Agreement, the performance of such obligation is hereby waived. 5. Commissions. Commission and SMA represent to each other that they have not authorized any broker to act on such party's behalf in connection with this First Amendment. 6. Continued Validity. Except as expressly modified hereby, the remaining terms and conditions of the Agreement shall remain in full force and effect, except that all references to "lease" shall be read to apply to the easement granted pursuant to this First Amendment. 7. Leasehold Mortgages. All references to "Mortgagee" in the Agreement shall be read to mean Lender and the Secretary of Housing and Urban Development. Notwithstanding anything to the contrary contained in Section 13.02 of the Agreement, the Commission hereby acknowledges and agrees that: (a) the provisions of Article XIII of the Agreement shall apply to Lender and HUD; and (b) that it will provide all Mortgagee notices under the Agreement to Lender and HUD at the below addresses. Without limiting the rights of Mortgagee under said Article XIII, during all times that and for so long as a HUD insured mortgage is in effect and encumbering the Stephenson Mill Project Site, the Agreement shall not be terminated, modified or amended without the prior written consent of HUD. St. James Capital, L.L.C. 33 Bloomfield Hills Parkway, Suite 125 Bloomfield Hills, MI 48304 Attn: Kenneth J. Wessel U.S. Department of Housing and Urban Development 151 North Delaware Street Suite 1200 Indianapolis, IN 46204 -2526 Attn: Keith W. Lerch, Esq. 8. Representations and Warranties. (a) SMA hereby represents and warrants that (i) SMA is duly organized, validly existing and in good standing (if applicable) in accordance with the laws of the State under which it was organized; (ii) SMA is authorized to do business in the State of Indiana; and (iii) the individual executing and delivering this First Amendment on behalf of SMA has been properly authorized to do so, and such execution and delivery shall bind SMA to its terms. (b) Commission hereby represents and warrants that (i) Commission is duly organized, validly existing and in good standing (if applicable) in accordance with the laws of -2- the State of Indiana; (ii) Commission is authorized to do business in the State of Indiana; and (iii) the individual executing and delivering this First Amendment on behalf of Commission has been properly authorized to do so, and such execution and delivery shall bind Commission to its terms. 9. Counterparts; Conflicts. This First Amendment may be executed in multiple counterparts, each of which shall be deemed an original and together will constitute one and the same document. To the extent there exists a conflict or inconsistency between the terms of this First Amendment and the terms contained in the Agreement, the terms of this First Amendment shall prevail. 10. Governine Law. This First Amendment shall be governed by the laws of the State of Indiana. (SPACE INTENTIONALLY BLANK — SIGNATURES TO FOLLOW) ME IN WITNESS WHEREOF, the parties hereunto have executed this First Amendment as of the date first written above. COMMISSION: CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature PriniedWa me an it e South Bend Redevelopment Commission ATTEST: Signature Printed Maine and it e South Bend Redevelopment Commission SMA: STEPHENSON MILL ASSOCIATES, LLC, a Wisconsin limited liability company By: HOUSING HORIZONS, LLC, a Texas limited liabilit co p y, its anager,` Name: Leonard J. nderson Title: Vice President and Chief Operating Officer �^ e fl 7vv bdutA � 3' CJ,.M%ssio,yF,�.O� C) is SOT AAr 9m : Q - _. 40M04� do 1%800 Eft 66 "MM