The URL can be used to link to this page

Home My WebLink AboutOshkosh Best Western - Assignment, Amendment and Assumption Agreement (Convention Center Agreement) (FE) February 2023159349097.15 ASSIGNMENT, AMENDMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT This Assignment, Amendment and Assumption of Management Agreement (this “Agreement”) is made and dated as of February 22, 2023 (the “Effective Date”), by and among OSHKOSH INVESTORS, LLC, a Wisconsin limited liability company (“Assignor”), 1 N. MAIN, LLC, a Delaware limited liability company (“Assignee”), and the CITY OF OSHKOSH, a municipal corporation (“City”). WITNESSETH: WHEREAS, the City is the owner of certain property located at 2 North Main Street and commonly known as the Oshkosh Convention Center (the “Convention Center”), which is connected to the Hotel (as defined below); WHEREAS, Assignor and the City entered into that certain Management Agreement dated May 16, 2012, as amended by that Amendment to Management Agreement dated June 10, 2013, and as further amended by that certain Amendment to Management Agreement dated May 16, 2018 (as amended, the “Convention Center Management Agreement”), pursuant to which Assignor has the exclusive right to manage, market, promote and operate the Convention Center; WHEREAS, in connection with the sale of the property located at 1 North Main Street, Oshkosh, Wisconsin (the “Hotel”), Assignor has agreed to assign, and Assignee has agreed to assume, all of Assignor’s rights, title and interests in the Convention Center Management Agreement; WHEREAS, the City desires to acknowledge and consent to the assignment of the Convention Center Management Agreement by Assignor to Assignee; and WHEREAS, in connection with Assignee’s assumption of the Convention Center Management Agreement, the parties wish to amend the Convention Center Management Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. All capitalized terms used in this Agreement but not otherwise defined herein are given the meanings set forth in the Convention Center Management Agreement. 2. Assignment and Assumption. Assignor hereby sells, assigns, grants, conveys and transfers to Assignee all of Assignor’s right, title and interest in, to and under the Convention Center Management Agreement. Assignee hereby accepts such assignment and assumes all of Assignor’s duties and obligations under the Convention Center Management Agreement and agrees to pay, perform and discharge, as and when due, all of the obligations of Assignor under the Convention Center Management Agreement but only to the extent that such obligations thereunder are required to be performed after the Effective Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper 159349097.15 performance, warranty or other breach, default or violation by Assignor on or prior to the Effective Date. All references in the Convention Center Management Agreement to Assignor shall, after the Effective Date, refer to Assignee. 3. City Consent. Pursuant to Section 12 of the Convention Center Management Agreement, the City hereby consents to the assignment of the Convention Center Management Agreement by Assignor, and the assumption of it by Assignee. The Convention Center Management Agreement will remain in full force and effect following the consummation of the transactions contemplated by the Purchase Agreement, except as amended hereby. 4. Amendments to Convention Center Management Agreement. In connection with the assignment and assumption of the Convention Center Management Agreement, the City and Operator hereby agree to amend the Convention Center Management Agreement as described below, effective as of the Effective Date: a. Term. The term of the Convention Center Management Agreement currently expires on December 31, 2030. Section 3.c. of the Convention Center Management Agreement is hereby amended to permit renewal of the Convention Center Management Agreement with such amendments and modifications that the parties may agree to in writing for up to ten (10) additional (5) year terms; provided the Operator provides the City no less than one hundred eighty (180) days’ prior written notice of its intent to renew, and such renewal shall be subject to approval by the City, which approval shall not be unreasonably withheld, conditioned or delayed. b. Payments to the City of Oshkosh. Section 4(b) is amended to state that the Operator shall pay six percent (6%) of the annual gross revenue from the operation of the Convention Center to the City as rent for the Convention Center. c. Payments to Oshkosh Area Community Foundation. The OACF loan for the Convention Center improvements has been repaid prior to the date of this Agreement. Section 5 of the Convention Center Management Agreement is hereby deleted in its entirety and replaced with “Intentionally Deleted.” d. Estoppel Certificates. Section 16 shall be amended to add the following Section 16.e.: “Estoppel Certificates. From time to time, as requested by the other party, upon not less than ten (10) days’ prior written notice, each party will execute and deliver to the other party (for reliance by such party, its lender or lenders, any prospective purchaser, and their respective successors and assigns) a statement certifying that the Convention Center Management Agreement is unmodified and in full force and effect (or if modifications have been made, that the same are in full force and effect as modified and stating the modifications), and stating whether, to the knowledge of the signer, any parties are in default in performance of any of their respective obligations under the Convention Center Management Agreement, and if so, specifying each such default of which the signer has knowledge, and such other factual information as may be reasonably requested and pertinent to the Convention Center Management Agreement.” 159349097.15 e. Notices. Section 17 of the Convention Center Management Agreement is hereby deleted in its entirety and replaced with the following: “Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to be an adequate and sufficient notice if given in writing and delivery is made either by (i) personal delivery, (ii) nationally recognized overnight air courier service, or (iii) email, provided that delivery thereof is acknowledged by the receiving party, and to the below addresses. Changes to these addresses shall be in writing. In addition to formal notification, both parties agree to take reasonable measures to keep the other party informed of issues or questions regarding the Convention Center. To City: City of Oshkosh c/o City Manager P.O. Box 1130 Oshkosh, WI 54903-1130 Email: citymgr@ci.oshkosh.wi.us To Operator: 1 N. Main, LLC c/o Scarlett Hotel Group One Northbrook Place, Suite 200 Northbrook, IL 60062 Attn: Zio Pekovic Email: zio.pekovic@scarletthotelgroup.com” f. Default. The following Section 18 is hereby added: “Default. In the event that either party hereto shall default in the performance of any of the agreements, conditions, covenants, or terms hereof, the other party may, after fifteen (15) days following written notice to such party, cure such default on the account of the other, provided however that if a breach cannot reasonably be cured within such fifteen (15) day period the party required to cure the breach shall not be in default if the party commences the process for curing the breach within such (15) day period and diligently pursues the cure to its conclusion. Any amount paid or any expense or liability incurred by a nondefaulting party in curing the default of the defaulting party shall be reimbursed by the defaulting party within thirty (30) days of written demand therefor, which demand shall include reasonable documentation of the costs incurred by the nondefaulting party for which it demands reimbursement. Further, if such default shall continue for a period of ninety (90) days after written notice from nondefaulting party and defaulting party has failed to undertake and pursue a cure for such default, the nondefaulting party may forthwith terminate this 159349097.15 Agreement, subject to any notice and cure rights of any mortgagee having an interest in the Convention Center, whether secured or unsecured, and all of the terms and conditions hereunder upon written notice to the defaulting party, provided that such default is substantial and material to this Agreement.” 5. Indemnity. To the extent allowed by law, Assignor shall indemnify, hold harmless and defend the Assignee and its respective members, partners, affiliates, parent business organizations, subsidiary business organizations, shareholders, officers, directors, beneficiaries, agents, employees, attorneys and representatives and their respective successors and assigns from and against any and all claims, demands, liabilities, injuries, losses, costs, damages, actions and expenses, known or unknown, directly or indirectly, including without limitation, injury or death of persons or damage to or loss of property, arising out of, alleged to have arisen out of, related to, or in connection with, any act or omission of Assignor in connection with the Convention Center Management Agreement, which arise or relate to the period prior to the Effective Date. Assignee shall indemnify, hold harmless and defend the Assignor and its respective members, partners, affiliates, parent business organizations, subsidiary business organizations, shareholders, officers, directors, beneficiaries, agents, employees, attorneys and representatives and their respective successors and assigns from and against any and all claims, demands, liabilities, injuries, losses, costs, damages, actions and expenses, known or unknown, directly or indirectly, including without limitation, injury or death of persons or damage to or loss of property, arising out of, alleged to have arisen out of, related to, or in connection with, any act or omission of Assignee in connection with the Convention Center Management Agreement, which arise or relate to the period following the Effective Date. 6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 8. Further Assurances. Each of the parties hereto shall execute and deliver, at the reasonable request of the other party hereto, such additional documents, instruments, conveyances and assurances and take such further actions as such other party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement. [Signatures Appear on Following Page]