HomeMy WebLinkAbout6A6 CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT
ESTOPPEL AND RELEASE
Date: January . 2013
Reference is made to that certain Construction. Easement, Restriction and Operating
Agreement by and among South Bend Joint Venture, an Indiana general partnership, f/k/a
Rahn Properties II (`Joint Venture"), 1st Source Corporation, an Indiana corporation. f/k/a
First Bank & Trust Company of South Bend ("lst Source"), the City of South Bend, Indiana,
a municipal corporation under the laws of the State of Indiana ("City"). the City of South
Bend Department of Redevelopment. a department of the City ("Department") and the South
Bend Civic Center Board of Managers, a board created under the ordinances of the City of
South Bend and pursuant to the Indiana State Code ("Board"). dated May 1, 1987, as
assigned by that certain Assignment and Assumption of CFMA and CEROA by and between
1st Source and First Bank Center Limited Partnership, a Minnesota limited partnership
("Seller"). dated December 28, 2010, and as amended by that certain First Amendment to
Construction, Easement, Restriction and Operating Agreement, by and among Seller (as
successor to 1st Source), Jenna Hotel Investments, LLC, a Delaware limited liability
company (as successor to Joint Venture and Host Hotels & Resorts, L.P.), and the
Department by and through the South Bend Redevelopment Commission and the Board,
dated August 4. 2011 (collectively. the "CEROA"). 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 CEROA.
At the request of PWA South Bend, LP, a Pennsylvania limited partnership
(Buyer"), in connection with its proposed acquisition from Seller of, among other things,
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'). relating to certain
real property located at 100 North Michigan Street, South Bend, Indiana, the undersigned
party ("Undersigned Party-) hereby certifies to Seller and Buyer and Lender (as defined
below), as follows:
A. The CEROA is in full force and effect.
B. The CEROA has not been modified or amended, except as set forth herein.
C. To the best knowledge of the Undersigned Party, no party to the CEROA is in
default, except as follows:
D. The nature of any existing default is as follows:
13t-Wet141§§3314-€.1
E. As of the date hereof. the annual "Maximum Contribution" as defined in the
CEROA is $
F. 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").
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
CEROA 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.
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 13 of the
CEROA. The Undersigned Party confirms that its notice address remains as set forth in Section
13 of the CEROA.
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DOGS-43807229-v1
The individual executing this certificate on behalf of the Undersigned Party 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 the Lease and (b) the assignment to and unqualified assumption
by Buyer of(i) the CEROA and (ii) the Lease, Undersigned Party shall release Seller from
any and all liability and obligation related to or arising out of the CEROA.
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.
[Remainder Intentionally Left Blank]
•
•
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DOCS-#3807229-v I
[Signature Page to Construction, Easement, Restriction and Operation 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:
4
DOCS-#3807229-v1
CERTIFICATION AND RELEASE
(Construction, Easement, Restriction and Operating Agreement Estoppel and Release)
At the request of PWA South Bend, LP, a Pennsylvania limited partnership
('Buyer"), in connection with its proposed acquisition of, among other things, 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") relating to certain 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, that (i) it has reviewed
the foregoing 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 paragraph above entitled "Notices" 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 CEROA and Lease by Buyer, Seller shall be released from any and all liability and
obligation related to or arising out of the CEROA (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:
5
DOCS-4380 7229_vI
•
CERTIFICATION AND RELEASE
(Construction, Easement, Restriction and Operating Agreement Estoppel and Release)
At the request of PWA South Bend, LP, a Pennsylvania limited partnership
('Buyer"), in connection with its proposed acquisition of. among other things. 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") relating to certain 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, that (i) it has reviewed
the foregoing 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. City of South Bend, by its
Board of Public Works, shall comply with the paragraph above entitled "Notices" 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 CEROA and Lease by Buyer, Seller shall be released from any and all liability and
obligation related to or arising out of the CEROA (as defined in the Estoppel Certificate).
City of South Bend, by its Board of Public
Works
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
6
DOCS-#3807229-v1
•
Attest:
Name:
Title:
CERTIFICATION AND RELEASE
(Construction, Easement, Restriction and Operating Agreement Estoppel and Release)
At the request of PWA South Bend, LP, a Pennsylvania limited partnership
("Buyer"), in connection with its proposed acquisition of, among other things, 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") relating to certain 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, that (i) it has reviewed
the foregoing 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. South Bend Civic Center
Board of Managers shall comply with the paragraph above entitled "Notices" 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 CEROA and Lease by Buyer, Seller shall be released from any and all liability and
obligation related to or arising out of the CEROA (as defined in the Estoppel Certificate).
South Bend Civic Center Board of Managers
By:
•
Name:
Title:
Date:
7
DOCS-14380 7229-vI