HomeMy WebLinkAboutAssignment of Indemnity Rights COSB 051426 BPWASSIGNMENT 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 (the “City”), the SOUTH BEND REDEVELOPMENT
COMMISSION (the “Commission,” and together with the City, the “Public Entities”) 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
Public Entities.
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 Public Entities, and (ii) the Public Entities’ obligations, if any, shall
in no event be expanded by this Assignment.
2. Consent and Acknowledgement. Each of the Public Entities, Assignor and Assignee
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
Public Entities 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 Public Entities for remediation and related
ASSIGNMENT OF INDEMNITY RIGHTS PAGE 2
DMS 51606605.3
costs (except to enforce the Oliver Park Indemnification), prohibiting the use, generation, processing,
treatment or storage of 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 Public Entities under Section 3 herein.
3. Assignor’s Indemnification of the Public Entities. Assignor shall and does hereby
indemnify the Public Entities and agrees to hold the Public Entities 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 Public Entities under
the Original Agreement, the New Agreement, or applicable law, (ii) expand the scope or duration of any
obligation of the Public Entities, or (iii) create any obligation on the part of the Public Entities 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]
ASSIGNMENT OF INDEMNITY RIGHTS PAGE 5
DMS 51606605.3
ACKNOWLEDGED AND CONSENTED TO:
CITY OF SOUTH BEND, INDIANA, acting by and through its
BOARD OF PUBLIC WORKS
By:
Elizabeth A. Maradik, President
By:
Joseph R. Molnar, Vice President
By:
Murray L. Miller, Member
By:
Breana N. Micou, Member
[Signature page to Assignment of Indemnity Rights]
May 18, 2026