HomeMy WebLinkAbout5A5 Assignment of Indemnity Rights (Oliver Park Site, Lot 7) - SignedASSIGNMENT OF INDEMNITY RIGHTS
THIS ASSIGNMENT OF INDEMNITY RIGHTS (this “Assignment”) is made as of the [●] day of May,
2026 (the “Effective Date”) by and between UPV LAND, LLC, an Indiana limited liability (“Assignor”),
and B&D ACQUISITIONS LLC, a New Jersey limited liability company (“B&D”) and OAKFORD E
BRISTOL RD LLC (“Oakford”) (B&D and Oakford collectively, jointly and severally, the “Assignee”).
RECITALS:
A. CITY OF SOUTH BEND, INDIANA, acting by and through the SOUTH BEND REDEVELOPMENT
COMMISSION (the “Commission,”) and THE 1100 CORPORATION, an Indiana corporation (“1100 Corp”)
are parties to that certain REAL ESTATE PURCHASE AND SITE WORK AGREEMENT dated on or about April
29, 2009 (the “Original Agreement”), which is attached hereto as Exhibit A and which contains certain
“Oliver Park Site Indemnification” provisions at Section 7(B) related to the “Oliver Park Site”, which
site is defined therein and depicted on Exhibit B, attached hereto.
B. The Original Agreement was assigned by 1100 Corp to Assignor via that certain
Assignment and Assumption Agreement dated July 2, 2009, which assignment was consented to by the
Commission.
C. Assignor and Assignee are parties to that certain PURCHASE AGREEMENT dated as of
February 6, 2026 (as amended, the “New Agreement”).
D. In connection with the closing under the New Agreement and for purposes of clarity,
Assignor desires to formally assign the rights to the Oliver Park Site Indemnification under the Original
Agreement to Assignee, as a successor to Assignor (and reserve and maintain Assignor’s right as an ongoing
indemnitee, together with Assignee), and Assignee desires to confirm and accept such rights on the terms
and conditions below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Assignment of Oliver Park Site Indemnification Rights. Assignor hereby assigns,
transfers and conveys to Assignee the rights and obligations of the Oliver Park Site Indemnification under
the Original Agreement to Assignee, as a successor to Assignor (and reserve and maintain Assignor’s right
as an ongoing indemnitee, together with Assignee), provided that (i) nothing herein shall be deemed to
assign or modify any obligation of the Commission, and (ii) the Commission’s obligations, if any, shall in
no event be expanded by this Assignment.
2. Consent and Acknowledgement. The Commission, Assignor and Assignee each hereby
acknowledge, agree to and consent to this Assignment and confirm that the property depicted on Exhibit B
is the “Oliver Park Site” and property covered by the Oliver Park Site Indemnification. The Commission
further confirms and acknowledges, solely for purposes of confirming the continued application of Section
7(B) of the Original Agreement, that under the terms of the Original Agreement the Oliver Park Site
Indemnification only terminates upon the occurrence of the conditions expressly set forth therein, including
the recording of a covenant-not-to-sue under the Indiana Voluntary Remediation Program or “no further
action” letter applicable to the Oliver Park Site as of the date of the Original Agreement. Assignee agrees
to the covenants of the Indemnitee contained in the Oliver Park Site Indemnification as specifically set out
in Original Agreement including: not reporting existing contamination to governmental officials except as
required by law, covenanting not to sue the Commission for remediation and related costs (except to enforce
the Oliver Park Indemnification), prohibiting the use, generation, processing, treatment or storage of
ASSIGNMENT OF INDEMNITY RIGHTS PAGE 2
DMS 51606605.3
hazardous substances at the Oliver Park Site unless in material compliance with applicable environmental
laws, and prohibiting the disposal of hazardous substances into on the Oliver Park Site. From and after the
Effective Date, Assignee shall be solely responsible, as between Assignor and Assignee, for compliance
with the covenants and obligations applicable to the indemnitee under the Oliver Park Site Indemnification
with respect to the Oliver Park Site, without limiting Assignor’s continuing indemnification obligations to
the Commission under Section 3 herein.
3. Assignor’s Indemnification of the Commission. Assignor shall and does hereby
indemnify the Commission and agrees to hold the Commission harmless of and from all liabilities,
obligations, actions, suits, proceedings, or claims, and all costs and expenses, including, but not limited to,
reasonable attorneys’ fees, arising out of or pertaining to Assignor’s use of the Oliver Park Site during its
ownership thereof, including, but not limited to, any changes in the environmental condition of the Oliver
Park Site occurring as a result of or in connection with Assignor’s use, ownership, or control of the Oliver
Park Site.
4. No Waiver; No Release; No Expansion of Obligations. Nothing in this Assignment shall
be deemed to (i) release, waive, or diminish any rights, defenses, or protections of the Commission under
the Original Agreement, the New Agreement, or applicable law, (ii) expand the scope or duration of any
obligation of the Commission, or (iii) create any obligation on the part of the Commission not expressly set
forth in the Original Agreement.
5. Recitals; Definitions; Counterparts. As amended hereby, the Agreement remains in full
force and effect. The recitals set forth above are acknowledged by the parties to be true and correct and
such recitals are incorporated herein by this reference. All capitalized terms used herein which are not
defined herein shall have the same meanings ascribed to them in the Original Agreement, the New
Agreement and this Assignment, as applicable. This First Amendment may be executed in identical
counterparts and by the exchange of .PDF, DocuSign or e-mailed signatures.
IN WITNESS WHEREOF, the parties have executed this Assignment of Indemnity Rights as of the
Effective Date.
Assignor:
UPV Land, LLC, an Indiana limited liability
company
By:
(Signature)
Donald E. Nuner
(Printed Name)
Its: Member
(Title)
ASSIGNMENT OF INDEMNITY RIGHTS PAGE 3
DMS 51606605.3
Assignee:
Oakford E Bristol Rd LLC, a New Jersey limited
liability company
By:
(Signature)
Martin Segal
(Printed Name)
Its: Authorized Signatory
(Title)
B&D Acquisitions LLC, a New Jersey limited
liability company
By:
(Signature)
Martin Segal
(Printed Name)
Its: Authorized Signatory
(Title)
ASSIGNMENT OF INDEMNITY RIGHTS PAGE 4
DMS 51606605.3
ACKNOWLEDGED AND CONSENTED TO:
CITY OF SOUTH BEND, INDIANA acting by and through the
SOUTH BEND REDEVELOPMENT
COMMISSION
By:
Printed Name:
Its:
Attest:
Printed Name:
Title:
[Signature page to Assignment of Indemnity Rights]
Troy Warner
President
David Relos
Vice President