HomeMy WebLinkAboutLimited Warranty Confirmation of Release filed 2/24/14 2014006763 RELEASE $25,00
° 02/24/2014 03:39:50P 6 P05
I ® Mary MI T, Clarkun
Recorded asPre Recorder IN
Presented
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the Memorandum of Collateral Assignment referenced herein is recorded in the Office of the Hamilton County
Recorder (the "Recorder's Office") as Instrument No. 2010027237.
The Real Estate Mortgage,Security Agreement,Assignment,and Fixture Filing referenced herein is recorded
in the Recorder's Office as Instrument No.2010053112,which is a"re-recording"of the Real Estate Mortgage,
Security Agreement, Assignment, and Fixture Filing recorded in the Recorder's Office as Instrument
No.2010027238. The foregoing Real Estate Mortgage, Security Agreement, Assignment, and Fixture Filing
amended, restated, and superseded in its entirety that certain Real Estate Mortgage, Security Agreement,
Assignment, and Fixture Filing recorded as Instrument No. 2007027805 in the Recorder's Office.
CONFIRMATION OF RELEASE
(Collateral Assignment)
This Confirmation of Release(Collateral Assignment)(the"Confirmation"),executed this
day of June, 2013, by United Fidelity Bank ("UFB"), Witnesses:
Recitals
WHEREAS, in June, 2010, CTDC obtained the CTDC/UFB Loan;
WHEREAS,to secure the CTDC/UFB Loan,CTDC collaterally assigned to UFB the interests
of CTDC in: (a) the Installment Contract; and (b) the Loan Interests; pursuant to the Collateral Assignment;
WHEREAS,as additional security, UFB required the execution of the UFB/BJS Note and the
UFB/BJS Mortgage,which replaced and superseded the FFB Notes and the FFB Mortgage in their entirety;
WHEREAS,the replacement of the FFB Notes and the FFB Mortgage with the UFB/BJS Note
and the UFB/BJS Mortgage had no effect on the existence of the Loan Interests, which remained collaterally
assigned to UFB pursuant to the Collateral Assignment;
WHEREAS, on December 27, 2012: (a) CRC prepaid in full all of its obligations under the
Installment Contract; and (b) CTDC repaid the CTDC/UFB Loan in full;
WHEREAS, in connection with the repayment of the CTDC/UFB Loan, UFB executed the
Assignment, which should have specified that, as of December 27,2012: (a)the Collateral Assignment was
terminated; (b)the Loan Interests were released by UFB to CTDC; and (c) CTDC owned the Loan Interests
free and clear of any rights or interests of UFB;
WHEREAS, the repayment of the CTDC/UFB Loan, and the termination of the Collateral
Assignment, did not have any effect on the UFB/BJS Note or the UFB/BJS Mortgage, which remained in full
force and effect, with CTDC in the position of the "Lender" and the "Mortgagee", respectively; and
WHEREAS, UFB wishes to execute this Confirmation;
Confirmation
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, UFB agrees as follows:
1. Definitions.
Assignment shall mean that certain Assignment of Acquisition Property(Parce110)executed by and between
UFB and CTDC and dated December, 2012 (and notarized on behalf of UFB on January 4, 2013), a copy of
which is attached hereto as Exhibit A.
CA Memorandum shall mean that certain Memorandum of Collateral Assignment recorded as
Instrument No. 2010027237 in the Recorder's Office.
Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement
executed by and among UFB, CTDC, and CRC and dated June 10, 2010.
CRC shall mean The City of Carmel Redevelopment Commission.
CTDC shall mean Carmel Theater Development Company, LLC.
CTDC/UFB Loan shall mean a loan from UFB to CTDC to finance the acquisition of the Property, which loan
was secured by assignments of the Installment Contract and the Loan Interests.
FFB shall mean First Financial Bank, NA.
FFB Mortgage shall mean, collectively, that certain: (a) Real Estate Mortgage recorded as Instrument
No. 200002805 in the Recorder's Office; and (b) Assignment of Lease and Rents recorded as Instrument
No. 200002806 in the Recorder's Office. The FFB Mortgage has been amended, restated, and superseded
in its entirety by the UFB/BJS Mortgage.
FFB Notes shall mean the promissory notes executed by BJS, LLC, in favor of FFB in connection with the
FFB Loans. The FFB Notes have been amended, restated, and superseded in their entirety by the UFB/BJS
Note.
Installment Contract shall mean that certain Installment Contract(Shapiro Loan Interests and Property) by
and between CRC and CTDC and dated June 10, 2010, pursuant to which CRC agreed to purchase the
Property from CTDC on an installment basis.
Loan Interests shall mean the interest of the"Lender"and the"Mortgagee"under the FFB Note and the FFB
Mortgage, as amended, restated, and superseded in their entirety by the UFB/BJS Note and the UFB/BJS
Mortgage, respectively.
Property shall mean the Loan Interests, together with certain other property.
Recorder's Office shall mean the Office of the Hamilton County Recorder.
UFB shall mean United Fidelity Bank.
UFB/BJS Mortgage shall mean that certain Real Estate Mortgage, Security Agreement, Assignment, and
Fixture Filing: (a) recorded as Instrument No. 2010027238 in the Recorder's Office; and (b) re-recorded as
Instrument No. 2010053112 in the Recorder's Office. The UFB/BJS Mortgage amends, restates, and
supersedes the FFB Mortgage in its entirety.
UFB/BJS Note shall mean that certain Promissory Note executed by BJS in favor of UFB. The UFB/BJS Note
amends, restates, and supersedes the FFB Notes in their entirety.
2. Confirmation. UFB confirms that, as of December 27, 2012: (a) the Collateral Assignment was
terminated;(b) UFB no longer had any rights or interests in or to the Loan Interests; and (b) CTDC regained
the position of the "Lender" and the "Mortgagee" with respect to the UFB/BJS Note and the UFB/BJS
Mortgage, respectively.
3. Release. UFB consents to the release of the CA Memorandum from the record.
Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 04Jun13
10-shapiros\2013 Unwinding\Confirmation-Release of Collateral
Assignment wpd -2-
IN WITNESS WHEREOF,UFB has executed this Confirmation as of the date set forth above.
UNITED FIDELITY ANK /(
By. ..Lrw'— 4-
__James A. Rush, Regional President
12 09_
ACKNOWLEDGMENT
STATE OF INDIANA
)SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for the State of Indiana, personally appeared James A.
Rush, the Regional President of United Fidelity Bank, who acknowledged the execution of the foregoing
Confirmation of Release (Collateral Assignment) on behalf of such entity.
WITNESS my hand and Notarial Seal this day of June, 2013.
By: e ///J
' e45J` �•
Notary Public //''��/'
'J Printed Name: (kV Al/ V' l?lici/I;
I am a resident of ('OOry-- County, Indiana. ((
CHERYL E.BRUIN
��I""" Boone County
My commission expires ti 20 }&11 .. My Commission Expires
4, ■:;M" July 20,2017
_
This instrument was prepared by Jennifer R. Shoup,Attorney-At-Law,W aliack Somers & Haas,One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204. I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security number in this document, unless required by law.
Jennifer R. Shoup
Z:\Documents\Shoup,Jenny\City of Carmel\Parcel 04Jun13
10-shapiros\2013 Unwinding\Confirmation-Release of Collateral
Assignment.wpd -3-
• •. 0'. A
ASSIGNMENT OF ACQUISITION PROPERTY
(Parcel 10)
This Assignment of Acquisition Property (the "Assignment"), executed this _ day of
December 2012, by and between United Fidelity Bank("UFB")and Carmel Theater Development Company,
LLC ("CTDC"), Witnesses:
Recitals
WHEREAS, UFB and CTDC have entered into that certain Loan Agreement dated June 10,
2010 (the"Loan Agreement"), pursuant to which UFB made the Loan to CTDC;
WHEREAS, in connection with the Loan, UFB, CTDC, and The City of Carmel
Redevelopment Commission ("CRC") executed that certain Tri-Party Agreement dated June 10, 2010 (the
"Tri-Party Agreement");
WHEREAS, pursuant to the Tri-Party Agreement in exchange for payment by(or on behalf of)
CTDC of the Base Purchase Price, UFB has agreed to assign to CTDC all of its right, title,and interest in the
Acquisition Property:
WHEREAS, as of the date hereof, CTDC has caused the Base Purchase Price to be paid to
UFB; and
WHEREAS, the parties desire to execute this Assignment;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, UFB and CTDC agree as follows:
1. Base Purchase Price. UFB acknowledges receipt of the Base Purchase Price and releases: (a)
CTDC from all obligations to UFB under the Loan Documents; and(b)CRC from all obligations to UFB under
the Tri-Party Agreement.
2. Assignment. UFB assigns and transfers to CTDC, and CTDC hereby accepts the assignment and
transfer of, all of UFB's right, title, and interest in the Acquisition Property.
3. Representations. UFB hereby represents and warrants that: (a)it has the right to assign and transfer
its right, title, and interest in the Acquisition Property to CTDC: (b) UFB is not in default under the Tri-Party
Agreement; and(c) UFB is not aware of any valid defenses or offsets of BJS, LLC to: (i)enforcement by UFB
or an assignee of the Acquisition Property; (ii)collection by UFB or an assignee of any amounts due under the
Acquisition Property; and/or(iii) exercise by UFB or an assignee of the rights and remedies afforded by the
Indiana Code to mortgagees and/or secured parties (including, without limitation, the right and remedy of
foreclosing or enforcing the BJS Mortgage or any lien, security interest, or collateral assignment on or of the
collateral for the Loan); subject to bankruptcy, insolvency, reorganization, moratorium, and similar laws in
effect from time to time and effecting the enforcement rights of creditors generally.
4. Further Assignment. UFB acknowledges that: (a)the Acquisition Property will be further assigned:
(b)the representations and warranties made by it in Section 3 will run with such further assignments: and(c)
accordingly, subsequent assignees of the Acquisition Property shall have the right to enforce such
representations and warranties, as if such representations and warranties had been made directly to such
assignees.
5. Miscellaneous. All capitalized terms used in this Assignment and not defined herein, shall have the
............
•
meanings ascribed to them in the Tri-Party Agreement.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set forth
above.
State of INDIANA )SS. UNITED FIDELITY BANK
County of HAMILTON)
BEFORE ME,the undersigned,a Notary Public in and for said County and State.Personally appeared 5 p,r..,{. A• who acknowledged the
James A. Rush, Regional President
Execution of the foregoing instrument thisy TK day of var.. J 2013,
o
KATHLEEN BARBAGLIA
< Notary Public - Seal
State of Indiana . - CARMEL THEATER DEVELOPMENT
My Commission Expires Oct 13. 2016 --J 4. COMPANY, LLC
..tary Public
b r My Commission Expires: t y County of Residence:
to lt/ e f tzto.1 By: REI Real Estate Services, LLC, sole
member
By:
Jeffrey S. Sporleder, CFO
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meanings ascribed to them in the Tri-Party Agreement.
IN WITNESS WHEREOF,the parties have executed this Assignment as of the date set forth
above.
UNITED FIDELITY BANK
By:
James A. Rush, Regional President
CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member J,
By: /�r jJZ-�L
J QSp leder, CFO
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