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HomeMy WebLinkAboutEX4 BPC 3 14 19 Bozeman - Estoppel and Consent to Collateral Parking Agreement Error! Unknown document property name. ESTOPPEL CERTIFICATE AND CONSENT TO COLLATERAL ASSIGNMENT OF PARKING AGREEMENT AND ASSUMPTION AGREEMENT PARKING PREMISES: Bridger Park Downtown Intermodal Facility, 26 East Mendenhall Street, Bozeman, Montana PARKING AGREEMENT: Agreement for the Use of Parking Spaces in the Bridger Park Downtown Intermodal Facility, dated August 21, 2013, by the Bozeman Parking Commission and The Etha Hotel, LLC and recorded as Document No. 2460146 in the records of Gallatin County, Montana, as amended by Amendment 1 dated April 30, 2018 recorded as Document No. 2613099 in the records of Gallatin County, Montana. PROPERTY: 24 West Mendenhall Street, Bozeman, Montana PARKING COMMISSION: Bozeman Parking Commission BORROWER: The Etha Hotel, LLC LENDER: CIP 2018 Equity REIT LLC, together with its successors and assigns as holder(s) of the Loan DATE: February __, 2019 The Lender is providing a construction mortgage loan (the “Loan”) to Borrower. Pursuant to a certain Collateral Assignment and Security Agreement in Respect of Contracts, Licenses and Permits and such other assignment instruments as may be executed from time to time between Borrower and Lender (“Collateral Documents”), Borrower has agreed, among other things, to assign to Lender, as collateral security for the Loan and related obligations, all of its right, title and interest in, to and under the Parking Agreement. Pursuant to Section 6 of the Parking Agreement, the Parking Commission’s consent is required in order for Borrower to collaterally assign its rights under the Parking Agreement. This Estoppel Certificate and Consent to Collateral Assignment of Parking Agreement and Assumption Agreement (this “Agreement”) is entered into by the Parking Commission as a courtesy for the benefit of Borrower with the understanding that Lender will loan certain monies to Borrower for Borrower to complete construction of the Etha Hotel (the “Hotel”). The Lender represents it will engage in its own due diligence regarding the conditions of the Parking Premises, the Hotel, and the current state of Borrower’s compliance with the Parking Agreement. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parking Commission and the Lender hereby agree as follows: 2 Error! Unknown document property name. 1. Attached hereto as Exhibit “A” is a true, correct, and complete copy of the Parking Agreement. Except as attached hereto, the Parking Agreement has not been assigned, modified, supplemented, or amended in any way. The Parking Agreement constitutes the entire agreement with respect to the Parking Premises between the Parking Commission and Borrower. The Lender acknowledges and agrees the purpose of the Parking Agreement is only to provide parking for a hotel for use by the public and not for any other use and Lender acknowledges should a use other than a hotel commence on the property, such as a residential or other commercial use, such use may automatically result in the Borrower or the Lender, as applicable, being in default of the Parking Agreement. 2. The Parking Agreement is valid and is in full force and effect, and, to the best of the Parking Commission’s knowledge, Borrower is not in default thereunder. 3. Notwithstanding anything to the contrary contained in the Parking Agreement, the Parking Commission hereby consents to Borrower’s collateral assignment of its right, title and interest in and to the Parking Agreement to the Lender and agrees that, upon receipt of notice from Lender that an event of default has occurred with respect to Borrower’s obligations in connection with the Loan, if so requested in such notice, Lender shall be entitled to exercise all of Borrower’s rights under the Parking Agreement and all other rights otherwise afforded to a secured party. 4. The Parking Commission agrees that if Lender notifies the Parking Commission in writing that Lender has foreclosed upon the Property or otherwise acquired title in connection with the exercise of remedies under the loan documents or a deed-in-lieu of foreclosure (each, a “Lender Title Transfer Action”), then (a) Lender shall be substituted for Borrower under the Parking Agreement, (b) the Parking Commission shall (1) recognize Lender as its counterparty under the Parking Agreement and (2) subject to the provisions of the Parking Agreement and this Agreement, perform its obligations under the Parking Agreement in favor of Lender. If Lender notifies the Parking Commission it has effected a Lender Title Transfer Action, Lender must, in the same written notice, (i) indicate whether it intends to honor the Borrower’s duties and obligation under the Parking Agreement from and after the date of such Lender Title Transfer Action; or (ii) terminate the Parking Agreement. If the Lender delivers a notice pursuant to clause (i), Lender agrees to accept all the duties and obligations of Borrower included in the Parking Agreement including all required indemnity obligations as if they were its own, in each case first accruing after such Lender Title Transfer Action. Nothing herein releases the Borrower from such duties and obligations accruing prior to such action by Lender. If the Lender notifies the Parking Commission of its intent to terminate the Parking Agreement pursuant to clause (ii) above, Lender must, within thirty (30) days of such notice deliver to the City of Bozeman a detailed plan for how it will bring the Hotel into compliance with the City of Bozeman’s Unified Development Code’s parking requirements. Lender acknowledges and agrees that failure to bring the Hotel into compliance the City of Bozeman’s Unified Development Code’s parking requirements may result in the City of Bozeman revoking the Hotel’s certificate of occupancy. 3 Error! Unknown document property name. 5. The Parking Commission agrees that in the event of a default or breach by Borrower of any of the terms, conditions or provisions of the Parking Agreement, the Parking Commission will give Lender written notice of such default. In all cases of default by Borrower of any of the terms, conditions or provisions of the Parking Agreement, the Parking Commission agrees to give Lender the opportunity to remedy or cure such default within the time periods provided for in the Parking Agreement or thirty (30) days after receipt of the notice of default by Lender, whichever is later. If such cure or performance by Lender is satisfactory to the Parking Commission, the Parking Commission agrees to accept any such cure or performance by Lender on Borrower’s behalf as if Lender were the “Hotel” under the Parking Agreement. 6. Upon the full discharge and satisfaction of Borrower’s obligations under the Loan and the release of the Deed of Trust by Lender (except in connection with a Lender Title Transfer Action pursuant to Section 4 of this Agreement), this Agreement and all rights herein assigned to Lender and the duties and obligations assumed by Lender shall terminate automatically without further notice. 7. Nothing herein shall affect the Parking Commission’s right to amend and/or terminate the Parking Agreement for any reason provided in the Parking Agreement; provided that any amendment entered into by Borrower shall not be binding on Lender without Lender’s written consent to such amendment. The Parking Commission agrees to provide written notice of any such amendment or termination to Lender. 8. Notwithstanding anything to the contrary herein, in the event Lender succeeds to Borrower’s right and interest in and to the Parking Agreement pursuant to Section 4 of this Agreement, Lender’s interest in the Parking Agreement may be assigned by Lender only with the prior written approval of the Parking Commission, which approval shall not be unreasonably withheld, conditioned or delayed. A requirement that the assignee must use the Property as a hotel shall not be regarded as an unreasonable condition. 9. All notices to be given to Lender shall be addressed as follows: CIP 2018 Equity REIT LLC One Boston Place Boston, MA 02108 Attention: Patrick O’Sullivan Telephone: (617) 624-8323 Email: posullivan@crossharborcapital.com All notices to be given to the Parking Commission shall be addressed as follows: Bozeman Parking Commission Attn: Parking Manager PO Box 1230 Bozeman, MT 59771-1230 4 Error! Unknown document property name. 10. The persons signing this Agreement are duly authorized representatives of the Parking Commission and the Lender, as applicable. 11. This Agreement shall be binding upon the undersigned and its successors and assigns. 12. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana, without regard to conflict of laws principles. Venue for any legal actions pertaining to this Agreement shall be Gallatin County, Montana. 13. This Agreement shall be recorded in the records of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by the Lender. A copy of this recorded agreement shall be provided to the Parking Commission at the address noted herein. [Signatures begin on the following page] Error! Unknown document property name. BOZEMAN PARKING COMMISSION By: Name: Title: Parking Manager STATE OF MONTANA ) ) COUNTY OF __________________ ) This instrument was acknowledged before me on this __________ day of February 2019, by ________________, known to me to be the Parking Manager of the City of Bozeman on behalf of the Bozeman Parking Commission, an entity of the City of Bozeman. _____________________________ _____________________________ [Type, Stamp or Print Name] Notary Public for the State of Montana Residing at __________, Montana My commission expires __________, 20__ [Signatures continue on the following page] 6 Error! Unknown document property name. CIP 2018 EQUITY REIT LLC, a Delaware limited liability company By: CrossHarbor Institutional Partners 2018 GP, L.P., a Delaware limited partnership, its Manager By: CrossHarbor Capital Partners LLC, a Delaware limited liability company, its General Partner By: _____________________ Name: Title: STATE OF __________________ ) ) COUNTY OF __________________ ) This instrument was acknowledged before me on this __________ day of February 2019, by ________________, known to me to be the ___________________ of CrossHarbor Capital Partners LLC, which is the general partner of CrossHarbor Institutional Partners 2018 GP, L.P., which is the Manager of CIP 2018 Equity REIT LLC. _____________________________ _____________________________ [Type, Stamp or Print Name] Notary Public for the State of Montana Residing at __________, Montana My commission expires __________, 20__ Error! Unknown document property name. Exhibit A Parking Agreement See attached.