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Home My WebLink About6B (9)(�e 8 (0() FIRST AMENDMENT TO PARKING LEASE This First Amendment to Parking Lease ( "First Amendment ") is entered into as of this day of , 2011 by and between the CITY OF SOUTH BEND, INDIANA, DEPARTMENT OF REDEVELOPMENT, acting by and through the SOUTH BEND REDEN ELOPMENT COMMISSION ( "Landlord "), and CENTRAL HIGH ASSOCIATES, LLC, a Wisconsin limited liability company ( "Tenant "). WITNESSETH: 'WHEREAS, Landlord and Tenant entered into that certain Agreement to Lease (as amendei, the "Lease ") dated effective December 29, 1995 pertaining to the lease by Tenant of a certain :)arcel on which Landlord subsequently completed improvements (the "Lease Parcel "), such Lease Parcel providing paved parking for Tenant's multi - family housing project adjoining the Lea.,.e Parcel (the "Central High School Project Site "); and 'WHEREAS, Tenant has applied for a Department of Housing and Urban Development ( "HUD ") refinancing of the Central High School 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 Lease, thereby making the termination date of the Lease the last day of the year that the Refinancing matures; and converting the interest of the Tenant to an easement interest; and 'WHEREAS, in order to satisfy the Lender's above- described requirement in connection with the; Refinance, Tenant has requested and Lender has agreed to extend the Lease on and subject lo 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, Landlord and Tenant agree that the Lease is hereby amended as follows: Capitalized Terms. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Lease. All references to "Alexander" or "The A exander Company, Inc." in the Lease shall be removed and replaced with "Housing Horizons, LLC ", the new managing member of the Tenant. Extension of Lease Term. The Lease is currently due to expire on December 28, 2015. The parties hereby agree that in consideration of the payment by Tenant of certain amortizing lease payments (as described below in Section 3), the Term of the Lease shall be extende4l to December 31, 2047. 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 Lease and the Tenant'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 info 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 , 2012. 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. Amortizing Rent Payments by Tenant. In consideration of Landlord's agreement to extend the Term of the Lease, Tenant will make the following payments to Landlord (collectively, the "Extension Payments ") in immediately available funds on the dates indicated below. Such payments will be made to Landlord in lieu of the current annual rent payments in the amount of $1.00 as provided in Section 4.01 and 4.02 of the Lease. If Tenant fails to make these payments on the dates provided below and does not cure such failure within fifteen (15) days following Landlord's written notice of such failure, Tenant shall be in default of its obli €ations under the Lease and Landlord shall be entitled to its remedies under Section 16.03 of the Lease. a) Upon the execution of the HUD refinancing, Tenant shall pay to Landlord the amount of $100,000.00; and {b) Pursuant to the Grant of Easement, commencing on January 1, 2013 and continuing on January 1 of each year thereafter through and including 2047, Tenant shall pay to Landlord the amount of $5,686.00. 4. Option to Purchase. Section 21.01 of the Lease is hereby amended to provide that Tenant's option to purchase may be exercised, at Tenant's option, at any time prior to the new expiration date of the Lease (as amended above in Section 2). Section 21.01 (b) of the Lease iE amended to provide that the purchase price for the Leased Premises shall be equal to the sum of (i) $1.00 plus (ii) all amounts due under Section 3(b) above prior to and subsequent to the date Tenant exercises its option to purchase and which have not yet been paid to Landlord. 3. No Defaults. Landlord and Tenant each represent and warrant that there are no uncured defaults under the Lease and that to the extent either party previously failed to perform an obligation under the Lease, the performance of such obligation is hereby waived. 6. Commissions. Landlord and Tenant represent to each other that they have not authorized any broker to act on such party's behalf in connection with this First Amendment. '7. Continued Validity. Except as expressly modified hereby, the remaining terms and con Jitions of the Lease shall remain in full force and effect. It. Leasehold Mortgages. All references to "Mortgagee" in the Lease shall be read to mead Lender and the Secretary of Housing and Urban Development. Notwithstanding anything, to the contrary contained in Section 13.02 of the Lease, the Commission hereby acknow edges and agrees that: (a) the provisions of Article XIII of the Lease shall apply to Lender end HUD; and (b) that it will provide all Mortgagee notices under the Lease to Lender and HUD at the below addresses. Without limiting the rights of Mortgagee under said Article XIH, dieing all times that and for so long as a HUD insured mortgage is in effect and encumb ,-ring the Central High School Project Site, the Lease shall not be terminated, modified or amended without the prior written consent of HUD. -2- 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. 1 1. Representations and Warranties. a) Tenant hereby represents and warrants that (i) Tenant is duly organized, validly existing and in good standing (if applicable) in accordance with the laws of the State of Wiscon4n; (ii) Tenant is authorized to do business in the State of Indiana; and (iii) the individual executing and delivering this First Amendment on behalf of Tenant has been properly authorized to do so, and such execution and delivery shall bind Tenant to its terms. (b) Landlord hereby represents and warrants that (i) Landlord is duly organized, validly existing and in good standing (if applicable) in accordance with the laws of the State under A hich it was organized; (ii) Landlord is authorized to do business in the State of Indiana; and (iii) the individual executing and delivering this First Amendment on behalf of Landlord has been properly authorized to do so, and such execution and delivery shall bind Landlord to its terms. M. 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 Lease, the terms of this First Amendment shall prevail. .1. Governing Law. This First Amendment shall be governed by the laws of the State of Indiana. (SPACE INTENTIONALLY BLANK — SIGNATURES TO FOLLOW} -3- iN WITNESS WHEREOF, the parties hereunto have executed this First Amendment as of the date first written above. LANDLORD: CITY OF SOUTH BEND, INDIANA, DEPARTMENT OF REDEVELOPMENT, acting by and through the SOUTH BEND REDEVELOPMENT COMMISSION By: Name: Title: TENANT: CENTRAL HIGH ASSOCIATES, LLC, a Wisconsin limited liability company By: Housing Horizons, LLC, a Texas limited liability company, its manager M i ±7a1Ks ms, Leonard J. Anderson �- Vice President and Chief Operating Officer