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HomeMy WebLinkAbout6A5 OPERATION, MAINTENANCE AND EASEMENT AGREEMENT ESTOPPEL AND RELEASE Date: January . 2013 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 ("Original Easement"), 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 ("First Amendment"), 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 ("Second Amendment"), 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 ("Third Amendment"). and as further amended by that certain Fourth Amendment to Operation, Maintenance and Easement Agreement dated as of August 4, 2011, and recorded with the Recorder as Instrument No. 1120678 on August 15. 2011 ("Fourth Amendment," and the Original Easement as amended by and together with the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, 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 PWA South Bend, LP, a Pennsylvania limited partnership ("Buyer"), in connection with its proposed acquisition from First Bank Center Limited Partnership. a Minnesota limited partnership ("Seller"), of that certain Ground Lease Agreement for Private Development dated October 22, 1979 between the City of South Bend Department of Redevelopment, as lessor and FBT Bancorp, Inc.. as lessee, as subsequently amended, assigned and modified ("Lease"). of real property located at 100 North Michigan Street, South Bend, Indiana, Jenna Hotel Investments, LLC, a Delaware limited liability company ("Undersigned Party-) hereby certifies to Seller and Buyer and Lender (as defined below) 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 Hotel 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 DOCS-#3807227-v1 PHILI 2573277v 2 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 seventy percent (70%) 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 seventy percent (70%) of the same. The statement set forth in this Section B specifically does not include any certification or representation as to the obligations contained in the Easement as to the Lease, of which and for which Undersigned Party has no knowledge whatsoever. C. The Common Facilities Management Agreement dated as of August 4, 2011 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 the 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 the 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 South Bend CAM, LLC, a Delaware limited liability company, 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 2 DOCS-83807227-vI PHIL 1 2573277v.2 (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. K. The Easement has not been amended (other than by amendments included above within the definition thereof) and remains in full force and effect. L. The Common Facilities Management Agreement dated as of November 1, 1981 referred to in paragraph 3 of the Second Amendment has been terminated and any amendments made to the Easement therein or in any exhibit thereto are of no further effect (unless and except to the extent expressly included in the Third Amendment or the Fourth Amendment). M. No amounts are owing by Seller to the Undersigned Party or to the Manager (as defined in the Easement) under Section 4(e)(i) of the Easement. • N. To the knowledge of the Undersigned Party, no complaint has been filed against Seller by any other party to the Easement on account of any failure or alleged failure of Seller to perform any of its obligations imposed under the Easement. 0. The Undersigned Party has been informed that The Royal Bank of Scotland plc ("RBS." and together with its successors and assigns. "Lender") is making a mortgage loan in the original principal amount of $10.700,000.00 to Buyer to finance Buyer's acquisition of the Lease, and such mortgage loan shall be secured by a mortgage upon a leasehold estate demised under the Lease and upon the fee interest in the improvements thereon (subject to the rights of lessor under the Lease) (as such mortgage may hereafter be amended, restated. modified and supplemented from time to time, the "RBS Mortgage"). P. Upon the recordation of the RBS Mortgage with the Recorder, the RBS Mortgage shall be a First Mortgage within the meaning of and for all purposes under the Easement. Notices. The Undersigned Party shall provide, simultaneously with its provision to Buyer, a copy of any notice of any default, breach, failure, violation or termination of the Easement to Lender, and no notice of default, breach, failure, violation or termination of the Easement shall be effective against Lender unless such notice is given in writing to Lender at the following address or such other address as Lender may designate from time to time in a written notice to the Undersigned Party: The Royal Bank of Scotland plc c/o RBS Financial Products Inc. 3 DOCS43807227-N PH I L 12573277x.2 Upon (a) the closing of the sale of the Lease and (b) the assignment to and unqualified assumption by Buyer of(i) the Easement and (ii) the Lease, 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, including, without limitation, Lender, and shall be binding upon the undersigned and its successors and assigns. [Signature Page to Follow] 5 DOCS-#3807227-vI PHILI 2573277v2 • CERTIFICATION AND RELEASE (Operation, Maintenance and Easement Agreement Estoppel and Release) At the request of PWA South Bend, LP, a Pennsylvania limited partnership ("Buyer"). in connection with its proposed acquisition of all rights of First Bank Center Limited Partnership. a Minnesota limited partnership ("Seller"), in and to that certain Ground Lease Agreement for Private Development dated October 22, 1979 between City of South Bend Department of Redevelopment, as lessor and FBT Bancorp, Inc.. as lessee, which was • recorded on November 13, 1979 as Document No. 7925386 in the Office of the Recorder of St. Joseph County, Indiana, as assigned, amended and modified ("Lease") demising real property located at 100 North Michigan Street. South Bend, Indiana, the South Bend Redevelopment Commission hereby certifies to Seller and Buyer and their respective successors, assigns, title companies and lenders, including, without limitation, Lender, that (i) it has reviewed the foregoing Operation, Maintenance and Easement Agreement Estoppel Certificate and Release by Jenna Hotel Investments. LLC, a Delaware limited liability company . and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. The South Bend Redevelopment Commission shall comply with the paragraphs above entitled "Notices" and "Lender Cure Rights" the same as the "Undersigned Party" thereunder. Seller, Buyer and Lender may rely hereupon. Upon the closing of the sale of the Lease, and assignment and written assumption of the Easement and Lease by 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: Its: Date: 7 DOCS-#3807227-%I PHIL) 2573277v.2 [Signature page to Operation Management and Easement Agreement Estoppel and Release] IN WITNESS WHEREOF, the Undersigned Party has duly executed this certificate as of the year and date first above written. Jenna Hotel Investments, LLC, a Delaware limited liability company By: Hotel Group Opportunity Fund IV, LLC, Its: Member By: THG Capital, LLC Its Manager By: Name: Title: Attest: Name: Title: By: South Bend Hotel Ventures, LLC, Its: Member By: THG Capital, LLC Its: Manager By: Name: Title: Attest: Name: Title: 6 Does-a3807227-vI PHIL! 2573277v2 600 Washington Boulevard Stamford, Connecticut 06901 Attention: Real Estate Advisory Facsimile No. (203) 873-4670 and The Royal Bank of Scotland plc do RBS Financial Products Inc. 600 Washington Boulevard Stamford. Connecticut 06901 Attention: Legal Department Facsimile No. (203) 873-4670 with a copy to: Klehr Harrison Harvey Branzburg LLP 1835 Market Street, Suite 1400 Philadelphia, PA 19103 Attention: Jon S. Robins, Esq. Telecopier: (215) 568-6603 Any and all notices given hereunder shall be given in accordance with Section 17(g) of the Easement. The Undersigned Party confirms that its notice address remains as set forth in Section 17(g) of the Easement. Lender Cure Right. The Undersigned Party covenants and agrees that it may not exercise any remedy upon any default, failure, violation or breach of the Easement by Buyer ("Default"), without first providing Lender with written notice of such Default and an opportunity to cure the Default in accordance with the terms of this paragraph. In the case of any failure to pay any amount as and when due under the Easement, Lender shall have until the later of: (x) the expiration of any cure period available to Buyer under the Easement, or (y) fifteen (15) days after Lender's receipt of written notice of such Default from the Undersigned Party, to cure or cause to be cured such Default. In the case of any other Default (a "Non-Payment Default'). Lender shall have until the later of(x) the expiration of any cure period available to Lessee under the Easement, or (y) thirty (30) days after Lender's receipt of written notice of such Default from the Undersigned Party, to cure or cause to be cured such Default; provided that in the case of any Non-Payment Default, if Lender elects in a writing to cure such Default within such thirty (30) day period, but is not practicably able to cure such Default within such thirty (30) day period, because Lender needs to obtain possession of the property encumbered by the RBS Mortgage in order to effectively cure the same or otherwise, then Lender shall have such additional time as it may need, exercising all commercially reasonable diligence, to cure such Default. 4 DOCS-#3807227-v1 PHILI 2573277v.2 Exhibit A to Operation, Maintenance and Easement Agreement Estoppel and Release Common Facilities Items Not in Good Condition or Repair 8 DOCS-#3807227-v I PHILI 2573277v 2 Exhibit B to Operation, Maintenance and Easement Agreement Estoppel and Release Management Agreement 9 DOGS-43SO7227-vI PHILI 2573277v2