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Department of
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Memorandum
Friday, December 06, 2013
TO: Redevelopment Commission
FROM: Brock Zeeb, Director of Economic Resources
SUBJECT: Yummy Cupcakes/ Bank Waiver
Yummy Cupcakes is requesting the Commission sign a disclaimer and Waiver of Interest for 1St Source
Bank on fixtures being install in the 119 S. Michigan St Shop.
The loan thru 1St source attach are for fixtures being installed in the Commission owned property.
Normally when fixtures are installed into a building they become part of the building, this waiver would
allow 1St Source right to those fixtures in the event of a default. This waiver also requires the
Commission give 1St Source a 30 days' notice prior to terminating lease with Yummy Cupcakes, so that
the bank has an opportunity to enter the building and secure its interest in the fixtures.
DCI has had the Commission attorney review the waiver of interest. It is acceptable. DCI is seeking
Commission's approval and signature of the Waiver of Interest for the 1St Source loan for Yummy
Cupcakes.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574 - 235 -9021 1 SOUTHBENDIN.GOV
source,
Bdhk
DISCLAIMER AND WAIVER OF INTEREST
(Real Estate)
Document Date: November 25, 2013
Irish Cupcakes Inc. ( "Customer ") has entered into a Loan and Security Agreement (the "Agreement") with I st Source Bank (`Bank "). Pursuant to the Agreement, Customer
has granted to Bank a lien and security interest under the Uniform Commercial Code in certain "Collateral" as set forth in Exhibit A, some or all of which Collateral may
from time to time be located upon the real property described on Exhibit B (the "Premises ").
1. Bank proposes to make from time to time one or more loans or to otherwise extend credit to Customer, on the condition that Bank will have a security interest in the
Collateral that has priority over and is senior to any claim now or hereafter asserted by any other party in or against the Collateral.
2. City of South Bend, Indiana, Department of Redevelopment acting by and through the South Bend Redevelopment Commission ( "Interest Holder ") holds an interest
in the Premises, as owner, lessor, mortgagee, other lienholder, or in some other capacity.
3. To induce Bank from time to time to make a loan or loans or otherwise extend credit to Customer, notwithstanding any claim presently or hereafter existing in Interest
Holder's favor as to any property of Customer, Interest Holder hereby waives and disclaims any and all liens, claims, demands, rights or interests which Interest
Holder may now have or may hereafter acquire in, on or to the Collateral, including, without limitation, the right to levy, distrain, take possession of or sell for unpaid
rent. The Collateral shall at all times be personal property, and not an accession or addition to or fixture on the Premises, regardless of the fact that it may be installed
on or in any manner attached to the Premises, and Interest Holder shall acquire no title to or interest in the Collateral by virtue of any installation or attachment. The
filing of any document as a fixture filing or similar filing shall not operate to negate any provisions of this Agreement, nor shall this Agreement be construed in any
manner to change the provision that the Collateral is to be personal property.
4. Interest Holder hereby consents to the liens and security interests on the Collateral heretofore or hereafter created in favor of Bank.
5. Bank may, at no expense to Interest Holder, enter onto the Premises at any time and inspect and/or take possession of, sever or remove the Collateral or any part
thereof and Bank may sell, transfer or otherwise dispose of the Collateral upon severance and/or removal free and clear of all liens, claims, demands, rights, or
interests of Interest Holder. Bank may occupy the Premises for the purpose of controlling the Collateral, preparing it for sale, or any other legal purpose fora period
not to exceed thirty (30) days from the time of written notice to Bank to vacate the Premises, and Bank shall pay to the owner of the Premises a reasonable sum for
rent during this thirty (30) day period or any portion or extension. Bank agrees to repair any damage caused by any severance and/or removal of the Collateral to the
extent reasonably necessary to restore the Premises to its condition immediately prior to such removal.
6. Interest Holder agrees not to take any action to terminate the right of Customer to occupy the Premises or to have the Collateral located on the Premises without thirty
(30) days prior written notice to Bank.
7. Interest Holder hereby agrees that any claim of Interest Holder with respect to the Collateral shall be subject, junior and subordinate in all respects to any Claim now or
hereafter held by Bank with respect to the Collateral to the extent of the total indebtedness of Customer to Bank, and that Interest Holder will not commence any action
or proceeding of any kind whatsoever to enforce any claim of Interest Holder with respect to the Collateral as long as Bank has any Claim with respect to the
Collateral.
8. The provisions of this agreement shall be binding on any party to whom Interest Holder assigns or transfers any interest in the Premises or claim of Interest Holder.
Interest Holder agrees to notify any proposed assignee or transferee of the existence and terms of this agreement, prior to transferring any interest in the Premises or
claim against the Collateral to such party.
9. This agreement shall remain in force as long as Bank has any interest in the Collateral.
10. A fax or other electronic reproduction of this Agreement with Interest Holder's signature shall be as effective and valid as if such page bore Interest Holder's original
signature. This Agreement may be executed and delivered via fax or other electronic means.
INTEREST HOLDER: City of South Bend, Indiana, Department of Redevelopment acting by and
through the South Bend Redevelopment Commission
/Ord By:
Title:
Disclaimer and Waiver of Interest — Real Estate 2 -7 -2013 Page 1 of 2
EXHIBIT A
Description of Bank Collateral
All assets of Customer, including
All accounts (including rights to payment of money arising from the license, sale, lease or assignment of property, health- care - insurance receivables, credit card
receivables and lottery winnings), contract rights, general intangibles (including payment intangibles, software, all insurance refund and all other insurance claims and
proceeds, tax refund claims, patents, patent applications, trademarks, trademark applications, trade names, copyrights, copyrights applications, right to sue and recover
for past infringement of patents, trademarks and copyrights, customer lists, goodwill, licenses and permits necessary for operation of the business of Borrower),
instruments (including promissory notes), chattel paper (including tangible chattel paper and electronic chattel paper), invoices, contracts, claims, leases, agreements,
books and records, policies or certificates of insurance, deposits, deposit accounts, documents, documents of title, choses in action, inventory, investment property,
letter -of- credit rights and letters of credit, supporting obligations, and all rights arising from the sale of accounts, payment intangibles or promissory notes, in the case
of each of the foregoing whether now owned or existing or hereafter acquired or arising;
All equipment, machinery, motor vehicles, furniture and all other goods and personal property and interests in goods and personal property, and all fixtures, in the case
of each of the foregoing, whether now owned or existing or hereafter acquired or arising;
Together with all additions, accessions and accessories to, substitutions for, and replacements, products and proceeds of, all of the foregoing, including, without
limitation, proceeds of insurance (collectively, the "Collateral ").
EXHIBIT B
Legal Description of Real Estate
The "Premises" referred to in this Disclaimer and Waiver of Interest is located in the County of St. Joseph, State of Indiana, and described as follows:
119 S. Michigan St.
South Bend, IN 46601
Disclaimer and Waiver of Interest — Real Estate 1 -1 -2008 Page 2 of 2