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HomeMy WebLinkAbout6B (1)6 g C1> FIRST AMENDMENT TO CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT This First Amendment to Construction, Easement, Restriction and Operating Agreement (this "Amendment ") is made and entered into effective as of , 2011, by and among Jenna Hotel Investments, LLC ( "Jenna "), a Delaware limited liability company, with offices at One Ten James Street, Suite 102, Edmonds, Washington 98020 (successor to Rahn Properties II ( "Rahn "), South Bend Joint Venture and Host Hotels & Resorts, L.P. ( "Host ")), First Bank Center Limited Partnership ( "Center "), a Minnesota limited partnership, with its principal office at 4924 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (successor to 1St Source Corporation ( "1St Source ")), the City of South Bend Department of Redevelopment by and through the South Bend Redevelopment Commission (the "Commission" or "Agency "), with its principal office at 1400 County -City Building, South Bend, Indiana 46601, and The South Bend Civic Center Board of Managers, with its principal office at 120 South St. Joseph Street, South Bend, Indiana 46601. WHEREAS, South Bend Joint Venture (predecessor to Jenna) and 1St Source (predecessor to Center), previously entered into that certain Construction, Easement, Restriction and Operating Agreement dated as of May 1, 1987, and recorded May 9, 1989, as Document No. 8911535 in the office of the Recorder of St. Joseph County, Indiana (the "Walkway Agreement "), pertaining to the operation, maintenance, repair and use of the Walkway, Century Center Access Corridor, Hotel Access Corridor, Access Hall, Access Elevator and related on -site improvements (as defined in the Walkway Agreement, and hereinafter referred to as "Walkway Elements "); and WHEREAS, Host, 1St Source, the City of South Bend, Indiana (the "City") and the Commission entered into that Garage Purchase Agreement fully executed on December 28, 2010, under which the Commission (or its designee or assignee) agreed to purchase Host's and 1St Source's interests in the Garage Facility (as defined in the Walkway Agreement) (the "Garage Purchase "); and WHEREAS, Host conveyed its interests in the Garage Facility and the on -site improvements related to the Garage Facility to the City, as evidenced by that certain Quit Claim Deed dated December 28, 2010, and recorded December 30, 2010, as Document No. 1036706 in the office of the Recorder of St. Joseph County, Indiana; and WHEREAS, 1St Source conveyed its interests in the Garage Facility and the on -site improvements related to the Garage Facility to the City, as evidenced by that certain Quit Claim Deed dated December 28, 2010, and recorded December 30, 2010, as Document No. 1036705 in the office of the Recorder of St. Joseph County, Indiana; and WHEREAS, 1St Source conveyed its interests in the Atrium (as defined in the Walkway Agreement) and the on -site improvements related to the Atrium to Center, as evidenced by that certain Quit Claim Deed dated December 28, 2010, and recorded December 30, 2010, as Document No. 1036710 in the office of the Recorder of St. Joseph County, Indiana; and 101652540.DOC;S ) WHEREAS, pursuant to that certain Assignment and Assumption of CFMA and CEROA dated as of December 28, 2011, by and between I" Source, as assignor, and Center, as assignee, Center assumed all of the duties, liabilities and obligations of 1st Source under (i) the Common Facilities Agreement dated as of November 1, 1981, by and between 1st Source and Host (as successor to Rahn Properties II), as amended ( "Common Facilities Agreement "), (ii) the Operations Agreement, and (iii) the Walkway Agreement; and WHEREAS, Jenna has expressly assumed all obligations of Host under the Walkway Agreement; and WHEREAS, Jenna has expressly assumed all obligations of Host under that certain Operation, Maintenance and Easement Agreement dated as of October 22, 1979, which was amended by a First Amendment thereto dated as of January 12, 1982, a Second Amendment thereto dated as of May 1, 1987, and Third Amendment dated as of December 28, 2010, and a Fourth Amendment dated as of even date herewith (collectively, the "Operations Agreement "), pertaining to the operation, maintenance and repair of the Common Facilities (as defined in the Operations Agreement); and WHEREAS, the parties wish to continue to provide for the operation, maintenance, repair and use of the Walkway Elements, as hereinafter provided; and WHEREAS, the parties hereto now desire to amend the Walkway Agreement. NOW, THEREFORE, in consideration of the above, the parties agree as follows: 1. The above recitals to this Amendment are hereby incorporated into and made a part of this instrument. 2. All references to "Rahn" or "South Bend Joint Venture" or "Host ", or any other intermediate assignees or predecessors • in interest or title to Jenna, in the Walkway Agreement shall hereafter be amended to be " Jenna." 3. Section 21 of the Walkway Agreement is hereby amended and restated as follows: 21. Successors and Assigns. Except as otherwise expressly provided to the contrary herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal and personal representatives, successors and assigns. Jenna and Center agree that any sale, transfer or assignment of all or a part of the respective parties' interest in the Hotel or Office Building, or in and to the Common Facilities, shall be subject to the terms of this Agreement, which shall be binding upon any transferee, assignee or successor in interest ( "Transferee'). The obligations set forth in this Agreement shall not be deemed to be personal to or binding upon any party to this Agreement, following the transfer in fee by such party, of its interest in the Property (or by assignment of such party's interest in its Ground Lease), to the extent permitted under this Agreement and the Ground Leases, provided that such Transferee has expressly -2- (01652540.DOC;5 ) assumed the obligations of the transferor or assignor ( "Transferor ") under this Agreement, the Ground Leases, the Agreements for Conveyance and that certain Joint Development Agreement by and among City, Agency, Rahn and FBT Bancorp, Inc., dated as of October 1, 1979 (the "Joint Development Agreement'), with respect to the interest in the Property which is so transferred or assigned. If such Transferee so expressly assumes the obligations of the Transferor, then and in such event the other parties to this Agreement agree to release the Transferor from liability for any breach of the terms, provisions or conditions of this Agreement, the Ground Leases, the Agreements for Conveyance or of the Joint Development Agreement occurring prior to such transfer or assignment, provided such Transferor shall, upon not less than fifteen (15) days written notice, request the other parties to execute and deliver to such Transferor and its designated Transferee a certificate substantially in the form as attached hereto as Exhibit D. If any party transfers all or a portion of its interest in the. Property to secure indebtedness by way of mortgage, deed of trust (or assigns its interest under its Ground Lease in connection with such mortgage or deed of trust) or in connection with the sale - leaseback financing transaction, and such party retains or acquires a possessory interest in the parcel so transferred, the owner offee title to the parcel of such party in the case of a sale - leaseback financing transaction or the holder of such mortgage or deed of trust (or the assignee of the assignor's interest under its Ground Lease), as the case may be, shall not be deemed to have assumed the obligations of such party, it being agreed that such party shall remain liable for the performance thereof. 4. The Walkway Agreement is hereby amended to include as Exhibit VI, the document attached as Schedule 1 to this Amendment. 5. Section 13 of the Walkway Agreement is hereby amended and restated as follows: 13. Notices. Any notice, demand, consent, approval, payment or other document or instrument required or permitted to be served upon any of the parties hereto shall be in writing and shall be either (i) delivered by hand, (ii) mailed by United States registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable, national overnight delivery service (e.g., Federal Express), or (iv) sent by facsimile (with the original being sent by one of the other permitted means or by regular United States mail) and addressed to each party at the applicable address set forth herein. Any such notice, request, or other communication shall be considered given or delivered, as the case may be, on the date of hand delivery (if delivered by hand), on the third (3rd) day following deposit in the United States mail (if sent by United States registered mail), on the next business day following deposit with an overnight delivery service with instructions to deliver on the next day or on the next business day (if sent by overnight delivery service), or on the day sent by facsimile (f sent by facsimile, provided the original is sent by one of the other permitted means as provided in this paragraph or by regular United States mail). -3- {01652540.DOC;5 } Jenna: Jenna Hotel Investments, LLC One Ten James Street, Suite 102 Edmonds, Washington 98020 Attention: Randy J. Meyer, CFO Telephone: (425) 771 -1788 Facsimile: (425) 672 -8280 Email: rmeyer @thehotelgroup.com with a copy to: Cairncross & Hempelmann 524 Second Avenue, Suite 500 Seattle, Washington 98104 Attention: Gregory J. Duff Tel No.: (206) 587 -0700 Fax No.: (206) 587 -2308 Email: gduff@cairncross.com Center: Bob Dunbar Chief Operating Officer - Asset Management Grubb & EllislCressy & Everett 3930 Edison Lakes Parkway Suite 200 Mishawaka, Indiana 46545 Telephone: (574) 271 -4060 Facsimile. (574) 271 -4292 with a copy to: Robert W. Horstman First Bank Center Limited Partnership 4924 IDS Center 80 South Eighth Street Minneapolis, Minnesota 55402 Telephone: (612) 204 -0647 Facsimile: (612) 338 -7079 City: City of South Bend, Indiana Board of Public Works 1316 County —City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 Telephone: (574) 235 -9251 Facsimile: (574) 235 -9171 -4- {01652540.DOC;5 } with copies to: Charles Leone, City Attorney City of South Bend 1400 County-City Building South Bend Indiana 46601 Telephone: (574) 235 -5857 Facsimile: (574) 235 -9892 Richard A. Nussbaum, II 210 South Michigan Street 5th Floor - Plaza Building South Bend, Indiana 46601 Telephone: (574) 234 -3000 Facsimile: (574) 234 -4220 Commission and Agency: Mayor City of South Bend 1400 County-City Building South Bend, Indiana 46601 Telephone: (574) 235 -9241 Facsimile: (574) 235 -9892 with copies to: Charles Leone, City Attorney City of South Bend 1400 County-City Building South Bend, Indiana 46601 Telephone: (574) 235 -5857 Facsimile: (574) 235 -9892 Richard A. Nussbaum, II 210 South Michigan Street 5th Floor - Plaza Building South Bend, Indiana 46601 Telephone: (574) 234 -3000 Facsimile: (574) 234 -4220 Board of Managers: The South Bend Civic Center Board of Managers Century Center 120 South St. Joseph Street South Bend, Indiana 46601 Telephone: (574) 235 -9711 Facsimile: (574) 235 -9185 -5- (01b52540.DOC;5 with copies to: Charles Leone, City Attorney City of South Bend 1400 County-City Building South Bend, Indiana 46601 Telephone: (574) 235 -5857 Facsimile: (574) 235 -9892 Richard A. Nussbaum, II 210 South Michigan Street 5th Floor - Plaza Building South Bend, Indiana 46601 Telephone: (574) 234 -3000 Facsimile: (574) 234 -4220 Any party hereto may change the name and address of the designee to which notice shall be sent by giving written notice of such change to the other parties hereto as provided above. 6. The parties acknowledge assignment of the Walkway Agreement to Jenna by Host, and Jenna expressly assumes all obligations of Host under the Walkway Agreement. 7. The South Bend Civic Center Building Authority ("Authority ") has joined in the execution of this Amendment to confirm that the Authority's agreement as to the matters contained in Section 30 of the Walkway Agreement shall extend to and include the terms and conditions of this Amendment. 8. This Amendment may be executed (by facsimile, digital or other electronic means) in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. 9. The Walkway Agreement remains in full force and effect and is in all respects hereby ratified and affirmed, except as amended hereby. 10. Consistent with Section 28 of the Walkway Agreement, this Amendment shall be recorded among the appropriate public records of the State of Indiana. -6- {01652540.DOC;S ) IN WITNESS WHEREOF, the undersigned have executed this First Amendment to Construction, Easement, Restriction and Operating Agreement as of the date first above written. FIRST BANK CENTER LIMITED PARTNERSHIP, a Minnesota limited partnership By: HUNTER, KEITH INDUSTRIES INC., Its General Partner By: -y----- --- -a- �--. -- -- Name: Vo Title: CXI^ L)I Attest:�l4�, a. &&yAbui Name: SuJIG A. 6kWM *Q ' ' � 1 1 7M!: ` ' [r (01652540.DoC;s ) 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: Ran J. sever Title: CFO r Attest: 'A JAR Name: J )C, Schiewe Title: Legal Assistant By: SOUTH BEND HOTEL VENTURES, LLC, Its Member By: THG CAPITAL, LLC I a er By: Name: I �JMr Title: CFO Attest: Name: iz C. Schiewe Title: Legal Assistant -7- SOUTH BEND REDEVELOPMENT THE SOUTH BEND CIVIC CENTER COMMISSION, as to itself and on behalf BOARD OF MANAGERS of the City of South Bend Department of Redevelopment By: By: Name: Name: Title: Attest: Name: Title: -8- (01652540.DOC;5 ) Title: Attest: Name: Title: CITY OF SOUTH BEND, by its Board of Public Works By: Name: Title: By: Name: Title: Name: Title: Attest: Name: Title: -9- {01652540.DOC;S } STATE OF MINNESOTA SS: HENNEPIN COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Robert W. Horstman, the Vice President - Finance of Hunter, Keith Industries Inc., General Partner of First Bank Center Limited Partnership, and acknowledged the execution of the foregoing First Amen meat to Construction, Easement, Restriction and Operating Agreement on this '51Y day Of 2011. Witness my hand and notarial seal. (SEAL) REam Notary Public My Commission Expires: 1 '3` (y My County of Residence is: -9- {01652540.DOC;5 } STATE OF WASHINGTON SS: KING COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared Randy J. Meyer, the CFO of THG Capital, LLC, Manager of Hotel Group Opportunity Fund IV, LLC and South Bend Hotel Ventures, LLC the members of Jenna Hotel Investments, LLC, and acknowledged the execution of the foregoing First Amendment to Construction, Easement, Restriction and Operating Agreement on this 2nd day of August, 2011. ess my hand and notarial seal. cr��EA.jr� s A - _ " 10. ritten Si atu)G� "v (Printed Signature) Notary Public My Commission Expires: February 10, 2014 My County of Residence is: Kitsan -11- {01652540.DOC;5 } STATE OF WASHINGTON R &I TARUCYCiliJIM Before me, the undersigned, a Notary Public in and for said State, personally appeared Randy J. Meyer, the CFO of THG Capital, LLC, Manager of Hotel Group Opportunity Fund IV, LLC and South Bend Hotel Ventures, LLC the members of Jenna Hotel Investments, LLC, and acknowledged the execution of the foregoing First Amendment to Construction, Easement, Restriction and Operating Agreement on this 2nd day of August, 2011. Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: February 10, 2014 My County of Residence is: Kitsan 101652540.DOC;5 ) Notary Public STATE OF INDIANA SS: ST. JOSEPH COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared the of the South Bend Redevelopment Commission, the governing body of the City of South Bend Department of Redevelopment, and acknowledged the execution of the foregoing First Amendment to Construction, Easement, Restriction and Operating Agreement on this day of , 2011. Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: _ My County of Residence is: -12- (0l652540.DOC;5 j Notary Public STATE OF INDIANA ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public in and for said State, personally appeared the of The South Bend Civic Center Board of Managers, and acknowledged the execution of the foregoing First Amendment to Construction, Easement, Restriction and Operating Agreement on this day of , 2011. Witness my hand and notarial seal. (SEAL) My Commission Expires: _ My County of Residence is: -13- {01652540.DOC;5 } (Written Signature) (Printed Signature) Notary Public STATE OF INDIANA SS: ST. JOSEPH COUNTY Before me, the undersigned, a Notary Public in and for said State, personally appeared and , members of the Board of Public Works of the City of South Bend, and acknowledged the execution of the foregoing First Amendment to Construction, Easement, Restriction and Operating Agreement on this day of , 2011. Witness my hand and notarial seal. (SEAL) (Written Signature) (Printed Signature) My Commission Expires: _ My County of Residence is: -14- {01652540.DOC;5 Notary Public SCHEDULE I EXHIBIT VI TO CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT Walkway Agreement Schedule 1 -1- 101652540.DOC;5 } CONSTRUCTION, EASEMENT, RESTRICTION AND OPERATING AGREEMENT [SOUTH BEND MARRIOTT] ESTOPPEL AND RELEASE Date: Reference is made to that certain Construction, Easement, Restriction and Operating Agreement dated as of May 1, 1987, and recorded with the St. Joseph County, Indiana Recorder ( "Recorder ") as Instrument No. 8911535 on May 9, 1989, and as amended by that certain First Amendment to Construction, Easement, Restriction and Operating Agreement dated as of , and recorded with the Recorder as Instrument No. _ on (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 ( "Buyer "), in connection with its proposed acquisition of located at , South Bend, Indiana [Seller's Property], ( "Undersigned Party"), as owner of [Undersigned Party's Property], hereby certifies to (a) ( "Seller") and (b) Buyer, as follows: A. The Walkway Agreement is in full force and effect and has not been amended or otherwise modified, in writing or orally. B. 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 Walkway, Hotel Access Corridor, Access Hall, and Access Elevators (collectively, "Walkway Elements ") 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 that certain Common Facilities Management Agreement dated as of , ( "Management Agreement ") a copy of which is attached hereto as Exhibit A, Seller and Undersigned Party have fully complied with any and all installation, construction, maintenance, operation, repair, replacement, insurance and expense obligations contained in the Walkway Agreement, including without limitation, obligations with respect to the Walkway Elements, except for certain items described in the document entitled "Common Facilities Items Not in Good Condition or Repair," a copy of which is attached hereto as Exhibit B. In accordance with Section 5(c) of the Walkway Agreement, Undersigned Party shall pay percent (_%) of the costs and expenses incurred by the Board of Managers to operate, maintain and repair the Walkway pursuant to the Walkway Agreement. To the extent the cost to correct any items listed in Exhibit B is payable pursuant to the Walkway Agreement, Undersigned Party shall pay (_ %) of the same. The statement set forth in this Section B specifically does not include any certification or representation as to the obligations contained in the Walkway Agreement as to [Seller's Property] (other than the Walkway Elements), of which and for which Undersigned Party has no knowledge whatsoever. Schedule 1 -2- (01652540.DOC;5 ) C. As of the date of this Estoppel and to Undersigned Party's best knowledge, the use and operation of [Undersigned Parry's Property] is in full compliance with the requirements of the Walkway Agreement. D. As of the date of this Estoppel and to the actual knowledge of Undersigned Party, based solely on day to day observations of the Walkway Elements and without further investigation, inspection or inquiry of any nature whatsoever and in complete reliance upon the appointment of a manager pursuant to the Management Agreement, (a) the use and operation of the Walkway Elements by Seller, Undersigned Party and , as Manager, are in full compliance with the requirements of the Walkway Agreement, and (b) all improvements located in or on [Seller's Property] comply in all respects with all of the Walkway Agreement requirements applicable thereto. E. As of the date of this Estoppel and to Undersigned Party's best knowledge, Undersigned Party has no right to claim or establish any lien against any portion of the Hotel, the Office Building or First Bank Center Common Facilities pursuant to the terms of the Walkway Agreement. F. As of the date of this Estoppel, Undersigned Party has no actual notice of (without inquiry or investigation of any nature whatsoever), any reason why Seller has a right to claim or establish a lien against any portion of the Hotel, the Office Building or First Bank Center Common Facilities pursuant to the terms of the Walkway Agreement. G. As of the date of this Estoppel and to Undersigned Party's best knowledge, Undersigned Party is not in breach or default under the Walkway Agreement, and no event has occurred which, given notice, the passage of time or both, would constitute a breach or default by Undersigned Party under the Walkway Agreement. H. As of the date of this Estoppel, Undersigned Party has no actual notice of (without inquiry or investigation of any nature whatsoever), (a) Seller's breach or default under the Walkway Agreement, or (b) any event which may have occurred which, given notice, the passage of time or both, would constitute a breach or default by Seller under the Walkway Agreement. I. The individual executing this certificate on behalf of the undersigned entity 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 (i) [Seller's Property] and (ii) the ground lessee's interest in the land underlying [Seller's Property] by Buyer; and (b) the assignment to and unqualified assumption by Buyer of (i) the Walkway Agreement and obligations arising thereunder and (ii) the ground lease (dated ), Undersigned Party shall release Seller from any and all liability and obligation related to or arising out of the Walkway Agreement. Schedule 1 -3- (01652540 DOC;5 ) 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, and shall be binding upon the undersigned and its successors and assigns. [Signature Pages Follow] Schedule 1 -4- (01652540.DOC;S ) IN WITNESS WHEREOF, the Undersigned Party has duly executed this certificate as of the year and date first above written. By: Name: Title: Date: Schedule 1 -5- (01652540.DOC;5 ) CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) At the request of ( "Buyer "), in connection with its proposed acquisition of located at , 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 Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by , and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. Upon the closing of the sale of and the ground lessee's interest in the land underlying by Buyer, and upon Buyer's assumption in writing of all of Seller's rights, duties, and obligations under the Walkway Agreement, Seller shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. SOUTH BEND REDEVELOPMENT COMMISSION, as to itself and on behalf of the City of South Bend Department of Redevelopment By: Name: Title: Date: Attest: Name: Title: Schedule 1 -6- (01652540.DOC;5 ) CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) At the request of ( "Buyer "), in connection with its proposed acquisition of located at , South Bend, Indiana, the City of South Bend, an Indiana municipal corporation acting by and through its Board of Public Works hereby certifies to Seller and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by , and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. Upon the closing of the sale of and the ground lessee's interest in the land underlying by Buyer, and upon Buyer's assumption in writing of all of Seller's rights, duties, and obligations under the Walkway Agreement (as defined in the foregoing Estoppel Certificate), Seller shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. CITY OF SOUTH BEND, by its Board of Public Works By: Name: Title: Date: By: Name: Title: Date: By: Name: Title: Date: Attest: Name: Title: Schedule 1 -7- {0 1652540 DOC;5 ) CERTIFICATION AND RELEASE (Construction, Easement, Restriction and Operating Agreement Estoppel and Release) At the request of ( "Buyer "), in connection with its proposed acquisition of located at , South Bend, Indiana, The South Bend Civic Center Board of Managers hereby certifies to Seller and Buyer and their respective successors, assigns, title companies and lenders, that (i) it has reviewed the foregoing Construction, Easement, Restriction and Operating Agreement Estoppel Certificate and Release by ' and (ii) to the best of its knowledge, the statements contained therein are true, correct and complete in all material respects. Upon the closing of the sale of and the ground lessee's interest in the land underlying by Buyer, and upon Buyer's assumption in writing of all of Seller's rights, duties, and obligations under the Walkway Agreement (as defined in the foregoing Estoppel Certificate), Seller shall be released from any and all liability and obligation related to or arising out of the Walkway Agreement. SOUTH BEND CIVIC CENTER BOARD OF MANAGERS By: Name: Title: Date: Schedule 1 -8- (01652540.DOC;5 )