UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Transcription

1 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION In re: ) Case No ) FAIR FINANCE COMPANY ) Chapter 7 ) Debtor. ) Judge Marilyn Shea-Stonum ) MOTION OF TRUSTEE TO APPROVE COMPROMISE WITH WAYNE BANK AND TRUST CO. AND FOR MODIFICATION OF THE AUTOMATIC STAY Brian A. Bash, the duly appointed Chapter 7 Trustee (the Trustee ) for Fair Finance Company (the Debtor ) in the above-captioned case, hereby moves for entry of an order, in substantially the form attached hereto as Exhibit A, approving the compromise of claims against Wayne Bank and Trust Co. ( Wayne Bank ) and modifying the automatic stay to permit the parties to take all action necessary to consummate the terms of that compromise, for the reasons more fully set forth in the attached memorandum of law. The proposed Agreement to be executed by the parties (the Settlement Agreement ) is attached to this Motion as Exhibit B. Date: November 26, 2013 Respectfully submitted, /s/ Adam L. Fletcher Adam L. Fletcher ( ) Kelly S. Burgan ( ) BAKER & HOSTETLER LLP PNC Center 1900 East 9 th Street, Suite 3200 Cleveland, Ohio Telephone: Facsimile: afletcher@bakerlaw.com kburgan@bakerlaw.com Counsel for the Trustee mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 1 of 74

2 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION In re: ) Case No ) FAIR FINANCE COMPANY ) Chapter 7 ) Debtor. ) Judge Marilyn Shea-Stonum ) MEMORANDUM IN SUPPORT OF MOTION OF TRUSTEE TO APPROVE COMPROMISE WITH WAYNE BANK AND TRUST CO. AND FOR MODIFICATION OF THE AUTOMATIC STAY In support of the Motion of Trustee to Approve Compromise With Wayne Bank and Trust Co. and for Modification of the Automatic Stay (the Motion ), the Trustee states as follows: I. INTRODUCTION AND SUMMARY The proposed Settlement Agreement 1 between the Trustee and Wayne Bank will compromise certain claims and causes of action asserted by the Trustee against Wayne Bank relating to their competing rights in a parcel of real property located in Carmel, Indiana (the Premises, as further defined below) that is owned by Diamond Investments, LLC ( Diamond ). Wayne Bank holds the record first mortgage on the Premises, while the Trustee holds both the record second mortgage (pursuant to a subordination agreement that was entered into by the Trustee s predecessor in interest with respect to that mortgage) and the record third mortgage. The Trustee has asserted that he may be able to avoid or otherwise render that subordination to Wayne Bank s mortgage ineffective, and thereby elevate his record second 1 Terms capitalized but not defined herein shall have the meanings ascribed to them in the Motion mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 2 of 74

3 mortgage to first priority. However, Wayne Bank has asserted that it has full defenses to the Trustee s claims. In addition, the fact intensive litigation to avoid or nullify the subordination would be complex and potentially expensive. The Trustee also believes that the value of the Premises can be maximized if he is able to work cooperatively with Wayne Bank, mainly because of a pending eminent domain proceeding by the State of Indiana as to part of the Premises and issues involving the delivery of clear title to a potential buyer out of a foreclosure or post-foreclosure sale, as more fully addressed below. For those and other reasons, rather than litigate the Trustee s asserted claims against Wayne Bank relating to the Premises, to date, the parties have cooperated to preserve and maximize the value of the property while they sought an agreed resolution of matters relating to the Premises. After extensive negotiations, the parties have now entered into the Settlement Agreement, subject to approval of the Court, which is designed to (i) enable the parties to cooperate in an effort to maximize the value of the Premises and (ii) set forth the division of the proceeds from the Premises between Wayne Bank and the Trustee. The Trustee believes that the Settlement Agreement eliminates the risks and uncertainties of litigation, as well as the risk of degradation of the value of the Premises that could result from delay or lack of cooperation between the Trustee and Wayne Bank. The Trustee also believes that the amounts that will ultimately be realized for the Debtor s estate from the Premises under the terms of the Settlement Agreement will likely equal or exceed the amount that the estate would realize from the Premises if the Trustee successfully pursued the claims against Wayne Bank, after taking into consideration Wayne Bank s defenses and the costs and expenses associated with bringing that litigation. Accordingly, as addressed in detail below, and for these reasons, the Trustee submits that mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 3 of 74

4 this proposed compromise is fair and reasonable, in the best interests of the estate, and should be approved by this Court. II. PROPOSED FINDINGS OF FACT A. General Findings 1. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. 157 and 1334 and Rule 9019 of the Federal Rules of Bankruptcy Procedure. This matter is a core proceeding pursuant to 28 U.S.C. 157(b). Venue in this Court is proper pursuant to 28 U.S.C and On February 8, 2010, creditor-investors filed a petition for involuntary bankruptcy against the Debtor. 3. Brian A. Bash is the duly appointed, qualified and acting Trustee for the Debtor in the above-captioned case. 4. Wayne Bank is a banking corporation organized under the laws of the state of Indiana, with its principal place of business located in Richmond, Indiana. 5. Diamond is a limited liability company organized under the laws of the state of Indiana. B. The Premises and Encumbrances Thereon 6. Diamond is the owner of that certain real property located at North Meridian Street, Carmel, Indiana (such real property, along with all buildings, improvements, easements, appurtenances, structures, fixtures, mineral and gas rights, and all other rights or property associated therewith of any kind or nature, including, without limitation, licenses granted by any federal, state, or local governmental authority for, of, or relating to the mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 4 of 74

5 operation of a medical facility upon such real property, and as more fully described in Exhibit A to the Settlement Agreement, the Premises ). 7. On or about May of 2003, Diamond granted a mortgage upon the Premises in favor of First Indiana Bank, N.A. ( First Indiana ), to secure a loan pursuant to a promissory note in the principal amount of $1,785,000. The mortgage in favor of First Indiana was recorded in the real estate title records in the Office of the County Recorder of Hamilton County, Indiana (the County Title Records ) on or about May 30, On or about June 26, 2003, Diamond granted a mortgage upon the Premises in favor of DC Investments, LLC ( DCI ) in the maximum amount of $900,000, to secure obligations owed by Diamond to DCI including, among other things, indebtedness under a guaranty agreement (such mortgage, the DCI Mortgage ). The DCI Mortgage was recorded in the County Title Records on or about June 27, On or about November 5, 2008, Diamond refinanced the existing balance on the loan from First Indiana by obtaining a new loan from Wayne Bank pursuant to a promissory note, which new loan was secured by a mortgage upon the Premises granted by Diamond in favor of Wayne Bank in the maximum amount of $1,500,000 (such mortgage, the Wayne Bank Mortgage ). Also on or about November 5, 2008, DCI and Wayne Bank entered into that certain Subordination Agreement (the Subordination Agreement ) whereby DCI agreed to subordinate the DCI Mortgage to the Wayne Bank Mortgage. The Wayne Bank Mortgage and the Subordination Agreement were recorded in the County Title Records on or about November 25, On or about June 13, 2010, the Trustee and DCI entered into that certain Compromise and Assignment Agreement and that certain Bill of Sale and General Assignment mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 5 of 74

6 (DC Investments, LLC) (collectively, the DCI Agreements ), which compromise was approved by this Court on June 16, Pursuant to the DCI Agreements, all of DCI s property was assigned to the Trustee, including the DCI Mortgage and the obligations owed to DCI by Diamond secured thereby. 11. On or about July 10, 2010, Diamond granted a mortgage upon the Premises in favor of the Debtor in the maximum principal amount of $2,454,700, to secure the repayment of amounts owed by Diamond to the Debtor pursuant to certain notes, loans and other financial accommodations (such mortgage, the Fair Finance Mortgage ). The Fair Finance Mortgage was recorded in the County Title Records on or about July 26, On or about December 30, 2011, Webster Business Credit Corporation ( Webster ) recorded against the Premises in the County Title Records a judgment issued in favor of Webster against Diamond in the amount of $724, (such judgment, the Webster Judgment ). 13. On or about February 5, 2012, Donald D. Lyons and Joan L. Lyons (together, the Lyons ) recorded against the Premises a notice of judicial lien arising from an order of prejudgment attachment issued in favor of the Lyons against Diamond by the United States District Court for the Northern District of Indiana in Case No. 1:09-CV-348, in which litigation the Lyons sought damages against Diamond in the amount of $3,000,000, plus prejudgment interest, attorneys fees and costs (such judicial lien, the Lyons Lien ). To date, the Lyons claims against Diamond have not been adjudicated to a final, non-appealable judgment. 2 2 The Trustee filed a motion to enforce the automatic stay against the Lyons asserting that their actions in seeking prejudgment attachment of various assets, including assets of Diamond that were to be assigned to the Trustee, were a violation of the automatic stay imposed by 11 U.S.C. 362 in the Debtor s bankruptcy case. That asserted stay violation was ultimately resolved through a Court approved settlement agreement between the Trustee and the Lyons, mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 6 of 74

7 14. The following is a summary of the current record priority of each encumbrance recorded against the Premises according to the County Title Records, the holder of that encumbrance, and the current outstanding amount believed to be secured by such encumbrance (as of October 31, 2013, in the case of Wayne Bank and the Trustee): Record Priority Position Encumbrance Holder of Encumbrance Outstanding Secured Amount Due First Wayne Bank Mortgage Wayne Bank $2,838, Second DCI Mortgage Trustee $900, Third Fair Finance Mortgage Trustee $2,454, Fourth Webster Judgment Webster $724, Fifth Lyons Lien Lyons Unliquidated (asserted damages are $3,000,000.00) 15. Prior to the commencement of the Condemnation (defined below), but after the filing of the Pending Foreclosure (defined below), the most recent appraisal in 2010 valued the entirety of the Premises at $1,965,000. An earlier appraisal in 2008 valued the Premises at $2,150,000. C. The Pending Foreclosure 16. On August 26, 2010, Wayne Bank initiated an action in the Hamilton Circuit Court, Hamilton County, Indiana, to foreclose upon the Wayne Bank Mortgage (the Pending Foreclosure ). In the Pending Foreclosure, Wayne Bank alleges that Diamond is in default of the obligations owed under the promissory note secured by the Wayne Bank Mortgage. 17. The Pending Foreclosure has been stayed upon the Trustee s assertion (which Wayne Bank has not contested to date) that, due to the Trustee s competing encumbrances upon which provided for the release of the prejudgment attachment as to certain receivables to be assigned by Diamond to the Trustee. However, the settlement provided that the Lyons Lien upon the Premises would stay in place, thereby preventing the Trustee from taking an assignment of Diamond s interests in the Premises mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 7 of 74

8 the Premises, the automatic stay imposed by 11 U.S.C. 362 in the Debtor s bankruptcy case is implicated. D. The Condemnation 18. On March 30, 2012, the State of Indiana commenced an eminent domain proceeding with respect to a portion of the Premises (the Condemnation ). 19. To date, Wayne Bank and the Trustee have worked cooperatively to defend the Condemnation Proceeding, including negotiations with the State of Indiana, in order to maximize the value to be realized from the condemned portion of the Premises. 20. It remains to be seen whether the Condemnation will have to be litigated or if the matter can be resolved through an agreed settlement award with the State of Indiana. The parties recently agreed to submit the matter to mediation and are in the process of selecting a mediator and scheduling mediation. Thus, the value that will ultimately be realized from the Condemnation remains unknown. The three court appointed appraisers in the Condemnation determined that the total damages resulting from the taking were $636,750. The Trustee and Wayne Bank intend to continue to cooperate in defending the Condemnation and negotiating with the State of Indiana in an effort to obtain a higher award. E. The Trustee s Asserted Claims Against Wayne Bank 21. The Trustee has asserted that he has certain claims, causes of action, or other entitlement to legal and/or equitable relief against Wayne Bank whereby the Trustee may seek to void, avoid, nullify, or otherwise render ineffective the Subordination Agreement and, thereby, render the DCI Mortgage the first priority encumbrance upon the Premises and the Wayne Bank Mortgage the second priority encumbrance upon the Premises (such claims, collectively, the Subordination Claims ). The Subordination Claims are based, in part, upon the Trustee s mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 8 of 74

9 assertion that DCI received no consideration or value for entering into the Subordination Agreement. 22. Wayne Bank disputes the merits of the Subordination Claims and has asserted various defenses that it would raise to such claims, including defenses relating to the secured value of the DCI Mortgage at the time the Subordination Agreement was entered into, as well as the doctrine of equitable subrogation pursuant to Indiana law. 23. The Trustee and Wayne Bank entered into discussions regarding the Subordination Claims. Rather than precipitously commence litigation, the parties agreed to toll any applicable statute of limitations pertaining to the Subordination Claims while the parties sought a negotiated resolution of the dispute. F. The Settlement Agreement 24. After extensive negotiations, the Trustee and Wayne Bank have agreed to enter into the Settlement Agreement attached to this Motion as Exhibit B, subject only to the approval of this Court. 25. The Settlement Agreement provides for the settlement and release of claims between the parties relating to the Premises, including the Subordination Claims. The Settlement also establishes a mechanism for the Trustee and Wayne Bank to cooperatively foreclose and/or liquidate via sale the uncondemned portion of the Premises and to mutually defend the Condemnation in order to maximize the value of the Premises. 26. The Settlement Agreement also provides for Wayne Bank to act as nominee and agent for the Trustee in order to foreclose the DCI Mortgage and the Fair Finance Mortgage in the Pending Foreclosure, thereby avoiding additional legal fees that the Trustee would otherwise have to incur in order to realize upon the Premises mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 9 of 74

10 27. Pursuant to the Settlement Agreement, Wayne Bank and the Trustee have agreed to collect and/or divide various proceeds and claims relating to the Premises as follows: Type of Proceeds or Claims Net Proceeds of Foreclosure or Post- Foreclosure Sale Net Proceeds of the Condemnation Award Rent Claims Relating to the Premises (Other Than Under Any New Lease After Effective Date of Settlement Agreement) Division Among the Parties - 85% to Wayne Bank - 15% to the Trustee - 80% to Wayne Bank - 20% to the Trustee - $80,000 (already collected pursuant to an assignment of rents and applied to outstanding secured obligations) to Wayne Bank - all other rent claims relating to the Premises to the Trustee 28. The Wayne Bank Mortgage, the DCI Mortgage, and the Fair Finance Mortgage secure, in the aggregate, a total of over $6,000,000 in outstanding claims. Even using the most liberal valuation of the Premises (including both condemnation award and sale of the residue of the property), this aggregate secured amount greatly exceeds the total value of the Premises. As such, the approach dictated by the Settlement Agreement will result in the extinguishment of competing junior encumbrances against the Premises (i.e., any remainder under the DCI Mortgage and/or the Fair Finance Mortgage, the Webster Judgment, and the Lyons Lien) and allow Wayne Bank and the Trustee to cooperatively maximize and realize upon the value of the Premises, with minimum risk and expense. 29. The Trustee has analyzed the Subordination Claims and believes that litigation of the Subordination Claims and Wayne Bank s asserted defenses thereto would likely present numerous, complex legal and factual questions, including potentially requiring expert testimony as to various valuation issues. The costs of such litigation would likely equal or exceed the difference between the value to be realized by the estate from the Premises if the Trustee succeeded on the Subordination Claims and the value that will be realized by the estate from the mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 10 of 74

11 Premises if the parties proceed with the Settlement Agreement. Moreover, the Trustee s success upon these complex and fact intensive claims is far from assured, based on counsel s analysis of Wayne Bank s defenses. 30. Extended litigation with Wayne Bank regarding the Subordination Claims could also delay foreclosure or post-foreclosure sale of the Premises and add uncertainty regarding the ability of either party to market the Premises for sale or lease, or to deliver clear title to an interested buyer within a foreseeable time frame, resulting in degradation in the realizable value of the Premises. In addition, Wayne Bank has to date advanced over $180, to pay real estate taxes and insurance to protect the value of the Premises. Delaying foreclosure and sale will require further advances for taxes, insurance and possibly other costs, further reducing the potential net sale proceeds available to the Trustee and Wayne Bank. 31. Similarly, litigation between the Trustee and Wayne Bank regarding the Subordination Claims could jeopardize their continued cooperation in defending the Condemnation, potentially creating uncertainty for the State of Indiana as to the appropriate party with whom it should be negotiating a potential settlement of the Condemnation, thereby again risking damage to the maximum realizable value of the Premises. 32. Finally, litigation between the Trustee and Wayne Bank would delay the ability to pursue potentially lucrative claims for unpaid rent relating to the Premises. While the Trustee holds contractual and other rent claims relating to the Premises under an assignment of receivables from Diamond, Wayne Bank holds and has executed upon an assignment of rents from Diamond regarding the Premises. This creates uncertainty regarding the ownership of rent claims relating to the Premises and might otherwise require litigation to resolve that issue. However, under the Settlement Agreement, Wayne Bank has agreed to assign any rights it has to mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 11 of 74

12 rents or other claims for use of the Premises (other than $80,000 already collected by Wayne Bank and applied to its secured obligations from Diamond) to the Trustee. This would leave the Trustee with the clear right to pursue remaining rent claims against potentially collectible third parties. 33. Given the expenses, risks and uncertainties of litigation, uncertainties about the value of the Premises at a foreclosure or other sale and the potential degradation of such value that could result from delay, uncertainties regarding the Condemnation and the effect of delay or noncooperation in that proceeding, and uncertainties regarding ownership of rent claims, the Trustee has determined that the Settlement Agreement provides the maximum realization of value from the Premises to the Debtor s estate, while eliminating risks and uncertainties relating to the Premises and the realization of value for the Debtor s estate therefrom to the greatest extent possible. III. PROPOSED CONCLUSIONS OF LAW A. The Applicable Standard Under Rule Rule 9019(a) of the Federal Rules of Bankruptcy Procedure provides that [o]n motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. 2. Compromises are favored in bankruptcy cases. In re Leeway Holding Co., 120 B.R. 881, 891 (Bankr. S.D. Ohio 1990); Magill v. Springfield Marine Bank, 67 B.R. 378, 383 (C.D. Ill. 1986). The decision to approve a settlement or compromise lies within the discretion of the Court and is warranted where the settlement is found to be reasonable and fair in light of the particular circumstances of the case. Protective Comm. for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson (In re TMT Trailer Ferry, Inc.), 390 U.S. 414, (1968); mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 12 of 74

13 International Distrib. Centers, Inc. v. Talcott, Inc., 103 B.R. 420, 422 (S.D.N.Y. 1989); In re Texaco, 84 B.R. 893, 901 (Bankr. S.D.N.Y. 1988); In re Albert-Harris, Inc., 313 F.2d 447, 449 (6th Cir. 1963); In re Parkview Hospital-Osteopathic Medical Center, 211 B.R. 603 (Bankr. N.D. Ohio 1996); In re Victoria Alloys, Inc., 261 B.R. 918, 920 (Bankr. N.D. Ohio 2001); In re SIS Corp., 108 B.R. 608, 612 (Bankr. N.D. Ohio 1989). 3. In determining whether a settlement is reasonable, a court should consider the following factors: a. The probability of success in litigation; b. The difficulty in collecting any judgment which may be obtained; c. The complexity of the litigation involved, and the expense, inconvenience, and delay necessarily attendant to it; and d. The interests of creditors and equity holders and a proper deference to their reasonable views of the settlement. See In re Martin, 91 F.3d 389, 393 (3d Cir. 1996); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (2d Cir. 1992); TMT Trailer, 390 U.S. at ; In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir. 1986); In re Swallen s, Inc., 210 B.R. 128 (Bankr. S.D. Ohio 1997); In re McLean Indus., Inc., 84 B.R. 340, 344 (Bankr. S.D.N.Y. 1988); In re Carla Leather, Inc., 44 B.R. 457, 466 (Bankr. S.D.N.Y. 1985). 4. Bankruptcy courts should approve a proposed settlement, after an independent review and evaluation of the applicable principles of bankruptcy law, unless it fall[s] below the lowest point in the range of reasonableness. In re W.T. Grant Co., 699 F.2d 599, 608 (2d Cir. 1983), cert. denied, 464 U.S. 822 (1983) (citations omitted) (quoting Newman v. Stein, 464 F.2d. 689, 693 (2d Cir. 1972)); see also In re Tennol Energy Co., 127 B.R. 820 (Bankr. E.D. Tenn mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 13 of 74

14 1991); In the Matter of Energy Cooperative, Inc., 886 F.2d 921 (7th Cir. 1989); In re Dow Corning Corp., 198 B.R. 214 (Bankr. E.D. Mich. 1996). Under TMT Trailer, courts should seek to balance the probable benefit and potential cost of pursuing a claim or defense against the costs of the proposed settlement. The Court is not required to conduct a mini-trial on the merits of the underlying causes of action being settled. In re Blair, 538 F.2d 849 (9th Cir. 1976); see also In re Walsh Construction, Inc., 669 F.2d 1325 (9th Cir. 1982). 5. Accordingly, courts generally give considerable deference to a trustee s recommendation of a proposed compromise and settlement. See Rivercity v. Herpel (In re Jackson Brewing Co.), 624 F.2d 599, 604 (5th Cir. 1980) (affirming district court s reliance on trustee s evaluation of merits of claim); In re Blair, 538 F.2d at 851, n.1 (affirming district court s reliance on trustee s conclusory statements in recommending settlement). Indeed, the Court should give weight to a trustee s informed judgment that a compromise is fair and equitable to the estate. See International Distrib. Centers, Inc., 103 B.R. at 423; and In re Carla Leather, Inc., 44 B.R. at 465. B. The Proposed Compromise Satisfies the Rule 9019 Standard 6. The Trustee respectfully submits that the compromise to be achieved by the proposed Settlement Agreement satisfies the standards for approval and, therefore, should be approved under Rule The proposed compromise is reasonable and in the best interests of the estate and creditors. As set forth in the Settlement Agreement attached hereto as Exhibit B, the settlement provides for the Trustee and Wayne Bank to cooperate and maximize the value of the Premises and to divide proceeds therefrom according to set formulas. In negotiating and agreeing to those formulas, the Trustee took into consideration the respective amount of the parties secured claims mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 14 of 74

15 against the Premises, current record priorities of encumbrances upon the Premises, the costs and uncertainties of litigation that would be necessary to change those priorities, the substantial sums already expended by Wayne Bank to preserve the value of the Premises, the division of responsibilities and costs between the parties going forward to preserve, defend and realize upon the value of the Premises, and the value of rent claims against third parties the disposition of which is also conclusively addressed in the Settlement Agreement. 8. The ultimate amount that will be realized from the Premises, both from foreclosure sale or post-foreclosure sale as well as from the Condemnation, is uncertain and depends on a variety of factors. Nonetheless, the Trustee believes that the recovery for the Debtor s estate under the Settlement Agreement will likely equal or exceed the recovery that would result if the Trustee successfully pursued the Subordination Claims, after taking into consideration legal fees to pursue that litigation and potential degradation of the value of the Premises occasioned by the delay from extended litigation. 9. Moreover, the Settlement Agreement reduces the risks and uncertainties of recovery that could occur if: (a) the Trustee succeeds on the Subordination Claims but the realized value from the Premises is insufficient to justify the costs and fees necessary to pursue those claims; or (b) the Trustee is unsuccessful on the Subordination Claims and all or the majority of the value realized from the Premises is consumed to satisfy Wayne Bank s record first priority mortgage. 10. Similarly, the Settlement Agreement resolves ownership of potentially lucrative rent claims against third parties in favor of the Trustee, which claims could otherwise be impeded by uncertainty over the Trustee s right to bring such claims mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 15 of 74

16 11. In sum, the Settlement Agreement will allow the Trustee to recover potentially hundreds of thousands of dollars for the estate, with minimum fees or expenses going forward, and without the risk that the value of the Premises will be impaired through delay and lack of cooperation and/or the risk that unsuccessful litigation on the complex and highly fact dependent Subordination Claims could result in a situation where the ultimate recovery to the Debtor s estate could be little or nothing, particularly after taking fees and costs into consideration. For these reasons, the Trustee believes that the costs and risks of litigating the Subordination Claims outweigh the possible benefit to the estate from pursuing those claims. 12. Having provided notice of the Motion to (a) the Office of the United States Trustee, (b) counsel to the Petitioning Creditors, (c) Wayne Bank, and (d) all parties who have requested notice, the Trustee requests and submits that, under the circumstances, no other or further notice need be given. IV. CONCLUSION WHEREFORE, the Trustee respectfully requests that this Court enter an Order, in substantially the form attached hereto as Exhibit A, (i) granting the Motion; (ii) approving the compromise on the terms set forth in the Settlement Agreement; (iii) modifying the automatic stay to permit Wayne Bank, for itself and as Nominee for the Trustee, to proceed with the Pending Foreclosure, and to take any other actions required or permitted under the terms of the Settlement Agreement; and (iv) authorizing and directing the parties to take all actions necessary or incidental to performance under the Settlement Agreement mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 16 of 74

17 Date: November 26, 2013 Respectfully submitted, /s/ Adam L. Fletcher Adam L. Fletcher ( ) Kelly S. Burgan ( ) BAKER & HOSTETLER LLP PNC Center 1900 East 9 th Street, Suite 3200 Cleveland, Ohio Telephone: Facsimile: afletcher@bakerlaw.com kburgan@bakerlaw.com Counsel for the Trustee mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 17 of 74

18 EXHIBIT A PROPOSED ORDER mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 18 of 74

19 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION In re: ) Case No ) FAIR FINANCE COMPANY ) Chapter 7 ) Debtor. ) Judge Marilyn Shea-Stonum ) ORDER APPROVING COMPROMISE OF CLAIMS BY THE TRUSTEE AGAINST WAYNE BANK AND TRUST CO. AND FOR MODIFICATION OF THE AUTOMATIC STAY This matter having been presented to the Court upon the Motion of Trustee to Approve Compromise With Wayne Bank and Trust Co. and for Modification of the Automatic Stay (the Motion ), 1 and upon the Memorandum of Law In Support of the Motion; and the Court having considered the Motion, and it appearing that the compromise is in the best interest of the Debtor s estate and creditors, and after due deliberation and consideration of the facts and circumstances therein: 1 It is hereby ORDERED, ADJUDGED, AND DECREED as follows: Terms capitalized but not defined herein shall have the meanings ascribed to them in the Motion and the Memorandum of Law in Support of the Motion mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 19 of 74

20 1. The Motion is GRANTED in its entirety. 2. The notice of the Motion was adequate and sufficient under the circumstances. 3. The compromise is hereby approved in accordance with the terms and conditions set forth in the Settlement Agreement attached to the Motion. 4. The automatic stay imposed by 11 U.S.C. 362 is hereby modified to permit Wayne Bank, for itself and as Nominee for the Trustee, to proceed with the Pending Foreclosure, and to take any other actions with respect to the Premises that are required or permitted under the terms of the Settlement Agreement. 5. The parties are hereby authorized and directed, without further order of this Court, to take all actions necessary or incidental to performance under the Settlement Agreement and to implement and effectuate this Order. 6. The Court shall retain jurisdiction with respect to all matters arising from or related to the Settlement Agreement and the implementation of this Order. Submitted by, IT IS SO ORDERED. /s/ Adam L. Fletcher Adam L. Fletcher ( ) Kelly S. Burgan ( ) BAKER & HOSTETLER LLP PNC Center 1900 East 9 th Street, Suite 3200 Cleveland, Ohio Telephone: Facsimile: afletcher@bakerlaw.com kburgan@bakerlaw.com Counsel for the Trustee ### mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 20 of 74

21 EXHIBIT B SETTLEMENT AGREEMENT mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 21 of 74

22 EXECUTION COPY AGREEMENT This agreement (the Agreement ) is made and entered into as of the 7th day of November, 2013 by and between Wayne Bank and Trust Co. ( Wayne Bank ) and Brian A. Bash, solely in his capacity as chapter 7 bankruptcy trustee (the Trustee, and together with Wayne Bank, the Parties and each separately, a Party ) for Fair Finance Company ( Fair Finance ). WHEREAS, Diamond Investments, LLC ( Diamond ) is the owner of that certain real property located at North Meridian Street, Carmel, Indiana and described more fully in the property description attached hereto as Exhibit A (such real property, along with all buildings, improvements, easements, appurtenances, structures, fixtures, mineral and gas rights, and all other rights or property associated therewith of any kind or nature, including, without limitation, licenses granted by any federal, state, or local governmental authority for, of, or relating to the operation of a medical facility upon such real property, the Premises ); WHEREAS, the real estate title records in the Office of the County Recorder of Hamilton County, Indiana (the County Title Records ) reflect that Wayne Bank is the record holder of that certain first mortgage upon the Premises (a copy of which is attached hereto as Exhibit B) (the First Mortgage ); WHEREAS, the County Title Records reflect that Fair Finance is the record holder of that certain second mortgage upon the Premises (a copy of which is attached hereto as Exhibit C) (the Second Mortgage ) and that certain third mortgage upon the Premises (a copy of which is attached hereto as Exhibit D) (the Third Mortgage and, together with the First Mortgage and the Second Mortgage, the Mortgages ); WHEREAS, the State of Indiana has commenced an eminent domain proceeding with respect to a portion of the Premises (the Condemnation ); WHEREAS, the Trustee has asserted that he has certain claims, causes of action, or other entitlement to legal and/or equitable relief against Wayne Bank whereby the Trustee may seek to void, avoid, nullify, or otherwise render ineffective a certain Subordination Agreement dated November 5, 2008 and recorded November 25, 2008, in the office of Hamilton County, Indiana (a copy of which is attached hereto as Exhibit E), pursuant to which the Trustee s predecessor as holder of the Second Mortgage at the time agreed to subordinate said mortgage to the First Mortgage (the Subordination Claims ); WHEREAS, Wayne Bank disputes the merits of the Subordination Claims; WHEREAS, Wayne Bank has initiated a pending action in the Hamilton Circuit Court, Hamilton County, Indiana, to foreclose upon the First Mortgage (the Pending Foreclosure ); WHEREAS, the Trustee has asserted that the Pending Foreclosure implicates the automatic stay in Fair Finance s bankruptcy case and that relief from the automatic stay is necessary for the Pending Foreclosure to proceed; WHEREAS, Wayne Bank advanced more than $170, from November, 2010 through August, 2013, including $161, for real estate taxes due and payable through May, 2013 and an additional $8, for insurance premiums, all to preserve and protect the Premises; mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 22 of 74

23 EXECUTION COPY WHEREAS, the Parties desire to resolve any and all claims, causes of action, or disputes between them with regard to or relating to the Premises and the Mortgages, including, without limitation, the Subordination Claims; and WHEREAS, the Parties agree that cooperation between them will maximize the value realized from the Premises for their mutual benefit; NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Appointment of Wayne Bank as Nominee. On the Effective Date (as defined in Section 8), the Trustee shall execute an appointment (in the form attached hereto as Exhibit F) naming Wayne Bank as the Trustee s nominee, agent, and attorney-in-fact to act on the Trustee s behalf with regard to the Second Mortgage and the Third Mortgage in connection with the Pending Foreclosure (in such capacity, the Nominee ). 2. Foreclosure of the Mortgages. On the Effective Date, Wayne Bank shall proceed with the Pending Foreclosure and shall foreclose upon the First Mortgage. Concurrent with the Pending Foreclosure, Wayne Bank, as Nominee for the Trustee, shall also proceed to foreclose upon the Second Mortgage and the Third Mortgage. 3. Collection of Proceeds. Wayne Bank, for itself and as Nominee for the Trustee, shall collect any proceeds payable to Wayne Bank or the Trustee from, of, or relating to the Premises, the foreclosure upon the Mortgages, or the Condemnation (collectively, the Proceeds ), including, without limitation, any proceeds by virtue of: a. any foreclosure sale, sheriff s sale, other judicial or statutory sale (any such sale a Foreclosure Sale ); b. any sale of the Premises to a third party following any acquisition or purchase of the Premises by Wayne Bank, directly or indirectly through an affiliate or nominee entity, by or through a Foreclosure Sale or deed in lieu of foreclosure (a Post-Foreclosure Sale, and any Proceeds of a Foreclosure Sale or a Post-Foreclosure Sale, the Sale Proceeds ); and c. any judgment, award, settlement, or other monies or property received from, as a result of, or relating to the Condemnation (any such Proceeds, the Condemnation Proceeds ). Notwithstanding the foregoing, the Trustee shall have the exclusive right to collect the Unpaid Rent Claims (as defined in Section 5(c)(iii) herein). 4. Treatment of Proceeds Prior to Division. With respect to any Proceeds received by either Party, the recipient Party shall segregate and hold such Proceeds in trust for the benefit of the Trustee and Wayne Bank, as their interests appear under this Agreement, in an account denominated as a trust or escrow mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 23 of 74

24 EXECUTION COPY account until such time as the division and remittance of such Proceeds between the Parties occurs pursuant to Sections 5 and 6. In no event shall Wayne Bank or the Trustee be deemed to have received Proceeds from a purchase or acquisition of the Premises (directly or indirectly through an affiliate or nominee entity) by deed in lieu of foreclosure or by bidding any or all of the indebtedness secured by the First, Second or Third Mortgage to purchase the Premises at a Foreclosure Sale, it being understood that Sale Proceeds shall result only from a bona fide sale to a third party by Foreclosure Sale or Post-Foreclosure Sale. 5. Division of Proceeds. Notwithstanding either Party s receipt, directly or via its Nominee, of any Proceeds pursuant to any statutory, common law, or other legal or equitable priorities between or among the Mortgages, the Parties hereby agree that, as between them, ownership of the Proceeds shall be divided as follows: a. Sale Proceeds. With regard to the gross Sale Proceeds, after deducting therefrom all Sale Expenses (as defined below) to arrive at the net Sale Proceeds, eighty-five percent (85%) shall belong to Wayne Bank and fifteen percent (15%) shall belong to the Trustee. Sale Expenses means all reasonable costs and expenses incurred by Wayne Bank on or after the Effective Date in connection with the Pending Foreclosure, any Foreclosure Sale and any Post-Foreclosure Sale, including but not limited to the following: i. reasonable attorneys fees incurred to give notice to the Indiana court of the removal of the automatic stay, to update the title search to identify all persons claiming liens or other interests in the Property, to amend the Complaint to name such other parties and request foreclosure of the Second and Third Mortgages, to prepare and file all other pleadings and to appear and represent the plaintiffs at all hearings and proceedings as may be necessary or appropriate to defend the priority of the First, Second and Third Mortgages as against adverse claimants, to obtain a foreclosure judgment and order for a foreclosure sale of the Premises, and, if Wayne Bank acquires title, to assist in dealings with brokers and in the negotiation and closing of a Post-Foreclosure Sale; ii. brokers commissions not exceeding market rates in connection with any Post-Foreclosure Sale or any new lease(s), options, or other agreements entered into on or after the Effective Date through the date of any Post-Foreclosure Sale; iii. other expenses customarily incurred by foreclosing lenders and sellers of comparable properties, including but not limited to reasonable charges for title insurance, ALTA Land Title survey, environmental assessment reports, escrow closing fees, recording costs, repairs or deferred maintenance costs resulting from purchaser s inspections or otherwise required to close the transaction; and mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 24 of 74

25 EXECUTION COPY iv. other expenses deemed necessary by Wayne Bank to keep, protect and preserve the Premises and the Parties security therein until sale of the Premises to a third party, including but not limited to costs of any necessary receivership and/or property management pending foreclosure and until sale to a third party, advances by Wayne Bank for property or liability insurance premiums, real estate taxes, mechanics liens, repair and maintenance costs, water, sewer, electric, gas and other utility charges, permitting or licensing fees, and similar expenses related to the Premises (to the extent such expenses are not paid by a tenant or covered by rents, if any, received by Wayne Bank). b. Condemnation Proceeds. With regard to the gross Condemnation Proceeds, after deducting therefrom the Appraisal/Consulting Expert Expenses (as defined below) to arrive at net Condemnation Proceeds, eighty percent (80%) shall belong to Wayne Bank and twenty percent (20%) shall belong to the Trustee. Appraisal/Consulting Expert Fees means all out-of-pocket expenses paid by Wayne Bank or its attorneys to appraisers, engineers, and other experts in connection with the defense and settlement of the Condemnation, provided the same have been or shall be disclosed to the attorney representing the Trustee in the Condemnation, including the following pre-effective Date items (and no others, if any, incurred prior to the Effective Date): i. fees paid to Integra Realty Resources for appraisal/valuation consulting services in the aggregate amount of $4,050.00; and ii. fees paid to Weihe Engineers in the amount of $ to prepare certain exhibits used to show the reduction in the net buildable area of the Premises (with setbacks under current zoning) after the taking. c. Other Proceeds. If either Party receives other Proceeds from the Premises from any source other than the Condemnation, a Foreclosure Sale or a Post-Foreclosure Sale, the Party so receiving such Proceeds shall report and identify the source and amount of such Proceeds, and the parties shall negotiate in good faith to arrive at an equitable division thereof, taking into account all relevant factors including but not limited to the nature and source of such Proceeds and any loss, cost, expense, fees, risk, damages and other circumstances associated therewith. For the avoidance of doubt, the Parties agree that: i. other Proceeds shall include any claim or recovery under a hazard insurance policy paid after the Effective Date on account of any fire or other casualty to the Premises occurring prior to or after the Effective Date (net of the costs, if any, incurred to obtain such recovery), which, unless otherwise agreed at the time, shall be expended solely for the purpose of restoring and repairing the damage to the improvements and not retained or mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 25 of 74

26 EXECUTION COPY distributed by either Party to pay any secured indebtedness or otherwise; ii. other Proceeds shall not include $80, in rents received by Wayne Bank from September, 2010 through August, 2011, pursuant to lease modification agreements made with the tenant following exercise of the Bank s assignment of rents applicable to the Premises (the Collected Rent ) and Wayne Bank shall be entitled to keep the Collected Rent, provided that Wayne Bank has applied or shall apply said Collected Rent to reduce the amount of principal owed (as of the date each such rent payment was received) in its calculation of the principal and interest components of the total indebtedness secured by the First Mortgage for purposes of the judgment to be sought by Wayne Bank from the court in the Pending Foreclosure; iii. other Proceeds shall not include the Unpaid Rent Claims (as defined below). Wayne Bank acknowledges and agrees that: 1. except as expressly provided in Section 5.c.ii. above, Wayne Bank hereby irrevocably transfers and assigns to the Trustee all of Wayne Bank s right, title, interest, and legal and/or equitable claims to any and all rents, damages or other amounts owed by any tenant, occupant, or other third-party to Diamond or Wayne Bank (A) owed under or arising out of any lease, lease modification agreement, use or occupancy agreement entered into prior to the Effective Date, whether accruing before or after the Effective Date, or (B) for holding over, wrongful possession, trespass, unjust enrichment or other unlawful or unauthorized occupancy under applicable law, whether arising before or after the Effective Date, including but not limited to any and all claims for, of or relating to any such rents, leases, use or occupancy agreements, holding over, trespass or other unlawful or unauthorized occupancy of the Premises (collectively, the Unpaid Rent Claims ); 2. the Unpaid Rent Claims are receivables owned by the Trustee pursuant to both: a. that certain Compromise and Assignment Agreement dated November 8, 2011, by and between the Trustee and Diamond; and b. Section 5.c.iii.1. above; 3. the Trustee shall have the exclusive right to pursue and collect the Unpaid Rent Claims, and shall have the exclusive right to apply any funds received on account of the Unpaid Rent Claims to the indebtedness secured by mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 26 of 74

27 EXECUTION COPY the Second Mortgage and Third Mortgage, or to any other indebtedness due and owing to the Trustee; 4. Wayne Bank shall execute and deliver to the Trustee such further assignments, instruments, releases and other documents, if any, as the Trustee may at any time reasonable request to evidence or implement the provisions of Section 5.c.iii.1.; iv. Proceeds shall include any rent or other amounts, however denominated, received by a Party or any receiver, property manager, or other person for or on behalf of any Party after the Effective Date pursuant to the terms of any new lease, occupancy agreement, purchase option, purchase and sale agreement, pre-closing or pre-sale occupancy agreement, or other agreement of any kind involving possessory rights or any other right, title or interest in the Property entered into after the Effective Date (collectively, Post-Effective Date Rents ), net of any and all Applicable Expenses attributable thereto ( Post- Effective Date Rent Proceeds ). Applicable Expenses means expenses of the same kind or character included in the definition of Sale Expenses, to the extent incurred in connection with or otherwise attributable to the transaction(s) from which any Post Effective Date Rents are derived. Post-Effective Date Rent Proceeds shall be shared fifty percent (50%) to the Trustee and percent 50% to Wayne Bank; provided, however, that any Post-Effective Date Rents credited against the purchase price for the Property in connection with any Foreclosure or Post-Foreclosure Sale to a third party shall be deemed Sale Proceeds and all Applicable Expenses relating thereto shall be deemed Sale Expenses. v. Proceeds shall not include any claim or recovery by a Party as an insured under a title insurance policy insuring marketable title or the priority of any insured mortgage lien; and vi. Proceeds shall not include any recovery by the Trustee against any third party for intentional or negligent acts or omissions that caused loss or damage to the Bankruptcy Estate, or the issuer or maker of any fidelity bond, insurance policy, indemnity or other agreement covering such loss or damage. 6. Remittance of Proceeds and Grant of Security Interest to Secure Remittance. As soon as practicable upon a Party s receipt, directly or via its Nominee, of any Proceeds pursuant to any statutory, common law, or other legal or equitable priorities between or among the Mortgages, the receiving Party shall remit to the other Party such other Party s allocable share of such Proceeds pursuant to the division of Proceeds set forth in Section 5. Each Party hereby grants (in that capacity, a Grantor ) to the other Party (in that capacity a Grantee ) a lien and security interest (each, a Security Interest ) in any Proceeds received by the Grantor so as to secure the full and timely remittance by the Grantor to the mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 27 of 74

28 EXECUTION COPY Grantee of the Grantee s allocable share of such Proceeds pursuant to Section 5 and this Section 6. Each Party may file or record whatever instrument or documents it deems necessary to perfect its Security Interest and the other Party shall provide or execute whatever information, instruments, or documents are reasonably necessary for the completion of such filing or recordation. 7. Mutual Releases. On the Effective Date, and except for the obligations of each Party as set forth in this Agreement, each Party hereby releases, acquits, and forever discharges the other Party, and such Party s officers, directors, partners, employees, agents, and attorneys (the Released Persons ), from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, for or because of any matter or things done, omitted or suffered to be done with respect to any liability of the other Party with respect to, under, or in connection with the Premises or the Mortgages, including, without limitation, the Subordination Claims. This release is not intended to and shall not be deemed to release or discharge, or in any way limit or affect the liability of, any person other than the Released Persons, nor shall it prevent any Party from pursuing any claim against any person not released hereunder; provided, however, that a Party pursuing any such claim shall indemnify, defend and hold harmless the other Party and the Released Persons from and against any crossclaim or other claim brought or threatened by such other person against the other Party and/or against a Released Person arising out of the Party s pursuit of such claim. 8. Bankruptcy Court Approval and Relief from the Automatic Stay. Upon execution of this Agreement, pursuant to Federal Rule of Bankruptcy Procedure 9019, the Parties shall seek and obtain requisite approval of the Agreement from the United States Bankruptcy Court for the Northern District of Ohio (the ( Bankruptcy Court ) and relief from the automatic stay in Fair Finance s bankruptcy case to permit Wayne Bank to foreclose upon the Mortgages as required by Section 2. The effectiveness of this Agreement is conditioned upon the receipt of such approval and relief from the automatic stay in Fair Finance s bankruptcy case and the effective date of this Agreement ( Effective Date ) shall be the date of the Bankruptcy Court s final order granting such approval or relief. 9. Continued Cooperation; Attorneys. a. The Parties shall continue to cooperate with respect to the foreclosure of the Mortgages, the defense or settlement of the Condemnation, and the collection, division, and remittance of any Proceeds. At the request of either Party, the other Party shall take any actions or refrain from taking any actions as is reasonably necessary to advance the foregoing areas of cooperation. b. The Trustee and Wayne Bank have determined that, upon the Effective Date, their interests in the Pending Foreclosure will be aligned. Accordingly, the Trustee and Wayne Bank consent to the engagement by Wayne Bank of the same attorney or attorneys to represent their mutual interests in the Pending Foreclosure proceedings and waive mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 28 of 74

29 EXECUTION COPY any conflict of interest that may exist with respect to such common representation, provided, however, that the Trustee reserves all rights regarding its interests, including but not limited to the rights: i. to be kept informed by said attorney(s) as to the progress of the Pending Foreclosure proceedings; ii. at any time to direct Wayne Bank, in its capacity as Nominee for the Trustee, to engage separate counsel selected by the Trustee to appear in the Pending Foreclosure proceedings to represent the interests of the Trustee; and/or iii. to revoke its appointment of Wayne Bank as Nominee and appear directly in the Pending Foreclosure by separate counsel. For the avoidance of doubt, the Parties agree that Wayne Bank s right to deduct its Sale Expenses prior to the division of Sale Proceeds (as set forth in Section 5.a.) fully compensates Wayne Bank for any fees or costs incurred by Wayne Bank as Nominee for the Trustee or otherwise and Wayne Bank shall have no right to seek or obtain compensation or reimbursement for any Sale Expenses or other costs or fees incurred by Wayne Bank from the Trustee or Fair Finance s bankruptcy estate. c. With respect to the defense or settlement of the Condemnation: i. the Trustee shall, unless otherwise agreed by both parties, continue to be separately represented in all negotiations, proceedings and other matters related thereto by the separate attorney(s) who appeared for and are representing its interest in the Condemnation any successor counsel selected by the Trustee in its sole discretion; and ii. recognizing that condemnation awards and offers under Indiana law are made in the aggregate to cover all interests in the taken property, neither Party will propose a compromise settlement amount to the State of Indiana without prior approval of the other Party or its authorized attorney or representative. 10. Default. If either Party is or becomes in default of that Party s obligations under this Agreement, then the non-breaching Party may deliver a notice of such default to the Party in default. Upon receipt of such notice, the defaulting Party shall have ten (10) days to cure such default. Thereafter, the non-breaching Party may take whatever action or seek whatever relief to which the nonbreaching Party is entitled at law and/or in equity. 11. Notices. a. Method of Delivery. Any notices or other deliverables required or permitted by this Agreement shall be deemed received when delivered mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 29 of 74

30 EXECUTION COPY (provided, that any refusal to accept delivery of any such delivery shall constitute delivery at the time of refusal) to a Party s Notice Addresses: i. by U.S. registered or certified mail, return receipt requested, postage prepaid, as shown by the date on the return receipt; or ii. by nationally recognized commercial courier service, as shown by the tracking records maintained as business records by said courier service. b. Notice Addresses. The Parties addresses for notices and other deliverables ( Notice Addresses ) shall be as follows, unless a Party provides notice to the other Party of substitute Notice Addresses: i. To Wayne Bank at: Wayne Bank & Trust Co. Attention: Kyle Clark 500 South A Street Richmond, IN and- Rory O Bryan, Esq. Harrison & Moberly, LLP 10 W. Market Street, Suite 700 Indianapolis, IN ii. To the Trustee at: Brian Bash, Trustee for Fair Finance Company Baker Hostetler, LLP PNC Center 1900 East 9 th Street, Suite 3200 Cleveland, OH and- Kelly Burgan, Esq. Baker Hostetler, LLP PNC Center 1900 East 9th Street, Suite 3200 Cleveland, OH Miscellaneous. This Agreement constitutes the entire agreement and understanding between and among the Parties and supersedes all prior agreements, representations, and understandings concerning the subject matter hereof. This Agreement shall be binding upon the Parties and their respective successors, transferees, and assigns and shall inure to the benefit of, and be enforceable by, the Parties, the Released Persons, and their respective successors, transferees, and assigns. Nothing in this Agreement is mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 30 of 74

31 EXECUTION COPY intended to or shall be construed to create any rights in any third party, whether as a third party beneficiary or otherwise, except for the Released Persons who shall be deemed third party beneficiaries. None of the terms or provisions of this Agreement may be waived, altered, modified or amended except in writing duly signed by and on behalf of all Parties. This Agreement may be executed in any number of counterparts, which counterparts shall, collectively and separately, constitute one agreement, and a signature transmitted by facsimile or transmission shall be effective between the Parties. If any term or provision set forth in this Agreement shall be deemed invalid or unenforceable, the remainder of this Agreement, other than such provisions held invalid and unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted. Because each of the Parties to this Agreement has contributed to the preparation and drafting hereof, has read it, has reviewed it with counsel, and understands its terms and contents, the terms and provisions of this Agreement shall be interpreted and construed without any presumption or inference based upon the Party or Parties causing this Agreement to be drafted in fact. 13. Governing Law. All acts and transactions hereunder and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the domestic laws of the state of Ohio. 14. Retention of Jurisdiction. The Bankruptcy Court shall retain jurisdiction to interpret and enforce the terms of this Agreement and the Parties hereby consent to the exclusive jurisdiction of the Bankruptcy Court for such purposes. [The remainder of this page is intentionally blank. Signatures appear on the following page(s).] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 31 of 74

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33 EXHIBIT A [Property Description] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 33 of 74

34 LOT 2 IN MERIDIAN NORTH MEDICAL SUBDIVISION, SECONDARY PLAT, AS RECORDED AUGUST 11, 2003 IN PLAT CABINET 3, SLIDE 226, IN THE OFFICE OF THE RECORDER OF HAMILTON COUNTY, INDIANA mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 34 of 74

35 EXHIBIT B [First Mortgage] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 35 of 74

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48 EXHIBIT C [Second Mortgage] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 48 of 74

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52 EXHIBIT D [Third Mortgage] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 52 of 74

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58 EXHIBIT E [Subordination Agreement] mss Doc 1377 FILED 11/26/13 ENTERED 11/26/13 19:25:11 Page 58 of 74

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