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Home My WebLink About6B(2)CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT ESTOPPEL Date: November b_, 2013 Reference is made to that certain Construction, Easement, Restriction and Operating Agreement by and among South Bend Joint Venture, an Indiana general partnership, fva Rahn Properties H ( "Venture "), 1st Source Corporation, an Indiana corporation, f/k/a First Bank & Trust Company of South Bend (1st Source "), the City of South Bend, Indiana, a municipal corporation under the Laws of the State of Indiana ( "Cif '), 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 I, 1987, and recorded in the Official Records of St. Joseph County, Indiana (the "Official Records ") on May 9, 1989, as Document No. 8911535, as amended by that certain First Amendment to Construction, Easement, Restriction and Operating Agreement, by and among Jenna Hotel Investments, LLC, a Delaware limited liability company ( "Jenna ") (as successor to Venture and Host Hotels & Resorts, L.P.), Center, City, the Department (by and through the South Bend Redevelopment Commission) and the Board, dated August 4, 2011, and recorded in the Official Records on August 15, 2011, as Document No. 1120677 (collectively, the "Walkway Agreement" ). The undersigned party ( "Undersigned Party ") is the successor in interest to la Source under the Walkway Agreement. 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 Walkway Agreement. At the request of Jenna, in connection with its financing of that certain real property located at 123 N. St. Joseph Street, South Bend, Indiana, and the improvements located thereon (collectively the "Pro pert "), the Undersigned Party hereby certifies to Jenna and Lender (as defined below), as follows: A. The Walkway Agreement is in full force and effect. B. The Walkway Agreement has not been modified or attended, except as set forth herein. C. 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 Common Facilities Management Agreement dated August 4, 2011, no party to the Walkway Agreement is in default, except as follows: None D. The nature of any existing default is as follows: None E. To the best knowledge of the Undersigned Party, as of the date hereof: the annual `Maximum Contribution' as defined in the Walkway Agreement is $20,644.60. F. The Undersigned Party has been informed that LMREC III Holdings III, Inc., a Delaware corporation ( "Lender ") is making a mortgage loan in the original principal amount of $12,000,000 to Jenna, and such mortgage loan shall be secured by a mortgage upon the fee interest in the Property (as such mortgage may hereafter he amended, restated, modified and supplemented from time to time). Notices. The Undersigned Party shall provide, simultaneously with its provision to Jenna, a copy of any notice of any delimit, breach, failure, violation or termination of the Walkway Agreement 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: LMREC III Holdings IIl. Inc. 350 South Beverly Drive, Suite 300 Beverly Hills, CA 90212 Attention: Asset Management Facsimile No: (310) 234 -2150 with a copy to: Safarian Choi & Bolstad, LLP 555 South Flower Street, Suite 650 Los Angeles. CA 90071 Attention: Chris K. Safarian, Esq. Facsimile: (213) 225 -1146 Any and all notices given hereunder shall he given in accordance with Section 13 of the Walkway Agreement. The Undersigned Party confirms that its notice address is amended as follows: PWA South Bend, LP 4900 Perry Highway, Suite 300 Pittsburgh, PA 15229 Attn: John M. Schneider Facsimile: (412) 931 -2772 2 with a copy to: Metz Lewis Brodman Must O'Keefe LLC 535 Smithfield Street, Suite 800 Pittsburgh, PA 15222 Attn: Julie 1. Kline, Esq. Facsimile: (412) 918 -1199 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. This certificate may be relied upon and shall inure to the benefit of Jenna and Lender and their respective successors, assigns, title companies and lenders, and shall be binding upon the undersigned and its successors and assigns. [Remainder Intentionally Left Blank E [Signature Page to Construction, Easement. Restriction and Operation Agreement Estoppel] IN WPfNESS WHEREOF, the Undersigned Party has duly executed this certificate as of the year and date first above written. PWA SOUTH BEND, LP, a Pennsylvania limited partnership By: PWA FBC, LLC, a Delaware limited liability company, its General Partner Name: John M. Schneider Title: Prcsident/Manager CERTIFICATION (Construction, Easement, Restriction and Operating Agreement Estoppel) At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company ( "Jenna'), in connection with certain real property located at 123 N. St. Joseph Street, South Bend, Indiana, the South Bend Redevelopment Commission hereby certifies to Jenna, and LMREC III Holdings 111, Inc., a Delaware corporation ("Lender "), and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Estoppel Certificate by PWA South Bend, LP, a Pennsylvania limited partnership, 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. Jenna and Lender may rely hereupon. SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment By: _ Its: _ Date: CERTIFICATION (Construction, Easement, Restriction and Operating Agreement Estoppel) At the request of Jenm Hotel Investments, LLC, a Delaware limited liability company ( "Jena"), in connection with certain real property location at 123 N. St. Joseph Street, South Bend, Indiana, the City of South Bend, by its Board of Public Works hereby certifies to Jena and LMREC III Holdings III, Inc., a Delaware corporation ( "Lender "), and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Estoppel Certificate by PWA South Bend, LP, a Pennsylvania limited partnership, and (ii) to the best of its knowledge, the statements contained herein are true, correct and complete in all material respects. The 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. Jena and Lender may rely hereupon. By: Name: Patrick Henthorn Title: Member Date: Bv: Name: Brian Pawlowski Title: Member Date: P:\ W P51 \ W C \CommEconDev\certifications.doc x CITY OF SOUTH BEND, by its Board of Public Works By: Name: Gary A. Gilot Title: Board President Date: By: Name: David P. Relos Title: Member Date: Name: Kathryn E. Roos Title: Member Attest: Name: Linda M. Martin Title: Clerk CERTIFICATION (Construction, Easement, Restriction and Operating Agreement Estoppel) At the request of Jenna Hotel Investments, LLC, a Delaware limited liability company ("Jenna "), in connection with certain real property located at 123 N. St. Joseph Street, South Bend, Indiana, the South Bend Civic Center Board of Managers hereby certifies to Jenna and LMREC III Holdings III, Inc., a Delaware corporation ( "Lender "), and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Estoppel Certificate by PWA South Bend, LP, a Pennsylvania limited partnership, and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. The South Bend Civic Center Board of Managers shall comply with the paragraph above entitled "Notices" the same as the "Undersigned Party" thereunder. Jenna and Lender may rely hereupon. South Bend Civic Center Board of Managers By: Name: Date: PA WP5l\ DOC\CommFconDev \cenifications.docx