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HomeMy WebLinkAboutOshkosh Best Western - Assignment, Amendment and Assumption Agreement (Parking Garage Lease)(FE)159336454.10 ASSIGNMENT, AMENDMENT AND ASSUMPTION OF LEASE AND PARKING AGREEMENT This Assignment, Amendment and Assumption of Lease and Parking Agreement (this “Agreement”) is made and dated as of February 22, 2023 (the “Effective Date”), by and between OSHKOSH INVESTORS, LLC, a Wisconsin limited liability company (“Assignor”), and 1 N. MAIN, LLC, a Delaware limited liability company (“Assignee”), and the CITY OF OSHKOSH, a municipal corporation (“City”). WITNESSETH: WHEREAS, the City, as lessee, and City Center Associates, LLC, a Wisconsin limited liability company (as successor-in-interest to Park Plaza of Oshkosh, Inc., a Wisconsin corporation, “Ground Lessor”), as lessor, entered into that certain Ground Lease dated August 26, 1985, as amended from time to time, pursuant to which the City leases the real property legally described on Exhibit A hereto (the “Parking Garage Property”); WHEREAS, Assignor is the owner of the parking structure located on the Parking Garage Property (the “Parking Garage”) and pursuant to that that certain Lease and Parking Agreement approved by the City on October 23, 2012 as set forth in City Resolution 12-539 (the “Parking Garage Lease”), Assignor subleases the Parking Garage to the City; WHEREAS, in connection with the sale of the property located at 1 North Main Street, Oshkosh, Wisconsin (the “Hotel”), Assignor desires to assign to Assignee, and Assignee desires to accept, Assignor’s right, title, and interest in and to the Parking Garage Lease; WHEREAS, the City desires to acknowledge and consent to the Assignment (as defined below) of the Parking Garage Lease by Assignor to Assignee; and WHEREAS, in connection with the Assignment, the Assignee and the City desire to amend the Parking Garage Lease as more particularly described herein. 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 Parking Garage Lease. 2. Assignment and Assumption of Parking Garage Lease. Assignor hereby sells, assigns, grants, conveys and transfers to Assignee all of Assignor’s right, title and interest in, to and under the Parking Garage Lease, and Assignee hereby accepts such assignment and assumes all of Assignor’s duties and obligations under the Parking Garage Lease, and agrees to pay, perform and discharge, as and when due, all of the obligations of Assignor under the Parking Garage Lease, (the “Assignment”), but only to the extent that such obligations thereunder are 159336454.10 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 performance, warranty or other breach, default or violation by Assignor on or prior to the Effective Date. All references in the Parking Garage Lease to Assignor shall, after the Effective Date, refer to Assignee. 3. City Consent to Assignment. Pursuant to Section 13 of the Parking Garage Lease, the City hereby consents to the Assignment of the Parking Garage Lease by Assignor to Assignee. The Parking Garage Lease will remain in full force and effect following the consummation of the transactions contemplated by the Purchase Agreement, except as amended hereby. The City also represents and warrants to Assignee and its successors and assigns that the Ground Lessor consented in writing to the Parking Garage Lease, and such consent has not been revoked. 4. Amendments to Parking Garage Lease. In connection with the Assignment, the City and Assignee hereby agree to amend the Parking Garage Lease as described below, effective as of the Effective Date: a. Definitions in Parking Garage Lease. Any reference to “Oshkosh Investors, LLC” in the Parking Garage Lease are hereby deleted and replaced with “1 N. MAIN, LLC”. b. Fees. Section 10 of the Parking Garage Lease is hereby amended as follows: (i) All references to “December 31, 2022” in Section 10 are hereby deleted and replaced with “December 31, 2032”. (ii) The first two sentences of the third paragraph of Section 10 are hereby deleted and replaced with the following: “Prior to December 31, 2032, and prior to the expiration of each ten (10) year anniversary thereafter during the term of this Agreement, the City shall undertake a study of the then current Parking Structure maintenance costs and needs, and the parties shall meet to review such study and the fee structure for the Parking Structure, or to provide another means for payment of the City’s costs for maintenance of the Parking Structure. The parties shall then endeavor to enter into an amendment to this Agreement providing for payment of the anticipated costs related to further maintenance, repair or improvement of the Parking Structure for such succeeding ten (10) year period.” c. Notices. Section 14 of the Parking Garage Lease 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 159336454.10 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 Property. FOR 1 N. MAIN, LLC: 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 FOR THE CITY: City of Oshkosh c/o City Manager P.O. Box 1130 Oshkosh, WI 54903-1130 Email: citymgr@ci.oshkosh.wi.us” d. The following provision shall be inserted as Section 22 of the Parking Garage Lease: 22. Miscellaneous (a) 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 this 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 this 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 this Agreement. (b) Right to Encumber. 1 N. MAIN, LLC shall have the right to collaterally assign its rights under this Agreement, to any mortgagee. The mortgagee under any mortgage shall be entitled to receive notice of any default given under this Agreement; provided, however, that such mortgagee has delivered notice of its mortgage to the City. If any notice shall be given to a mortgagee regarding the default of 1 N. MAIN, LLC, then such mortgagee under any mortgage shall have an additional thirty (30) days beyond the date specified in the notice to cure the default specified in said notice, or, if such default cannot be cured within thirty (30) days, to diligently commence curing within such time and diligently cure thereafter, not to exceed an additional thirty (30) days. Mortgagees may jointly or singly pay any sum or take any 159336454.10 other action reasonably necessary to cure any default of 1 N. MAIN, LLC under this Agreement, with the same effect as cure by 1 N. MAIN, LLC itself, which cure by a mortgagee shall be accepted as performance on behalf of 1 N. MAIN, LLC by the City. (c) Assignment. 1 N. MAIN, LLC may assign its rights and obligations under this Agreement to a successor owner of the Hotel or any portion thereof in accordance with Section 13 of 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 Parking Garage Lease, 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 Parking Garage Lease 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 a memorandum of this Agreement for recording, and 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] [Signature Page to Assignment, Amendment and Assumption Agreement (Parking Lease)] IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date. ASSIGNOR: OSHKOSH INVESTORS, LLC, a Wisconsin limited liability company By: _____________________________________ Name: ___________________________________ Title: ____________________________________ ASSIGNEE: 1 N. MAIN, LLC, a Delaware limited liability company By: _____________________________________ Name: Zijad Pekovic Title: Authorized Signatory CITY: CITY OF OSHKOSH, WISCONSIN By: Mark A. Rohloff, City Manager By: Jessi L. Balcom, City Clerk Approved as to form: By: Lynn A. Lorenson, City Attorney [Exhibit A to Bill of Sale (Parking Garage)] 160824886.4 Exhibit A LAND DESCRIPTION Land in the County of Winnebago, State of WI, described as follows: That part of the First Ward, City of Oshkosh, Winnebago County, Wisconsin which is bounded and described as follows: Commencing at the Northeast Corner of Lot 1 in Moore’s Subdivision; thence N. 89°-25’-39”W. along the existing South line of Marion Street 194.48 feet; thence N.00°-24’-46”E. 15.71 feet, to the true point of beginning; thence N.89°-36’-07”W. 239.75 feet; thence S.00°-23’-53”W. 64.50 feet; thence N.89°-36’-07”W. 18.00 feet; thence S.00°-23’-53”W. 10.50 feet; thence S. 71°-10’-01E. 18.97 feet; thence S.00°-23’-53”W. 14.04 feet to a point on a concrete bulkhead; thence S.70°-30’-58”E. along said concrete bulkhead line 242.84 feet; thence N.06°-54’-46’E. 90.20 feet; thence N.00°24’-46”E. 84.84 feet, to the true point of beginning, excluding from said parcel that part of the northerly 14.57 feet of said parcel lying between the surface of the ground and a horizontal plane at elevation 766.0 feet above Mean Sea Level, such excluded area being part of the driveway easement hereinafter described. Said parcel contains 32,493.96 square feet of land.