Prepared by, and after recording return to: Moss & Barnett (EHK) A Professional Association
Prepared
by, and after recording
return
to:
Xxxx
& Xxxxxxx (EHK)
A
Professional Association
4800
Xxxxx Fargo Center
00
Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000-0000
FHLMC
Loan No. 002732432
____________________________________________________________________________________________________________________________________________
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
THIS
ASSUMPTION AGREEMENT is made
effective as of the 30th day of
November, 2007, by and among Regency North Associates, L.P., a Missouri limited
partnership ("Original Borrower"); Regency North Acquisition, LLC, a Missouri
limited liability company ("New Borrower"); and the FEDERAL HOME LOAN MORTGAGE
CORPORATION ("Noteholder") and is acknowledged and consented to by MJS
Associates, Inc., a Missouri corporation ("Original Guarantor").
RECITALS
|
|
A.
|
Original
Borrower obtained a mortgage loan (the "Loan") from Northland /
Marquette
Capital Group, Inc., a Minnesota corporation ("Original Lender"),
which
loan is secured by certain Land and Improvements (the "Property"),
located
in Kansas City, Clay County, Missouri. The Land is more
particularly described in Exhibit A, attached to this
Agreement.
|
|
B.
|
Original
Borrower executed a promissory note evidencing the Loan, dated
December
27, 2000, in the original principal amount of $5,250,000.00, payable
to
Original Lender (the "Note"). The Original Guarantor guaranteed
payment of certain amounts due under the Note by executing Limited
Guaranty dated December 27, 2000 (the "Original
Guaranty").
|
|
C.
|
To
secure repayment of the Loan, Original Borrower executed and delivered
to
Original Lender a Multifamily Deed of Trust, Assignment of Rents
and
Security Agreement (the "Security Instrument") of even date with
the Note,
which is recorded in the Official Records in the County of Clay,
State of
Missouri (the "Land Records") at Book 3240 at Page 681. Any
capitalized terms used in this Agreement and not defined shall
have the
meaning ascribed to them in the Security
Instrument.
|
|
D.
|
The
Note, Security Instrument and any other document executed by Original
Borrower in connection with the Loan that will be assumed by New
Borrower,
all as listed on Exhibit B to this Agreement, are referred to
collectively in this Agreement as the "Loan
Documents".
|
|
|
E.
|
Original
Lender endorsed the Note to the order of the Noteholder and by
instrument
dated December 27, 2000 filed for record on December 28, 2000 in
the Land
Records at Book 3240 at Page 727 sold, assigned and transferred
all right,
title and interest of the Original Lender in and to the Security
Instrument and the Loan
|
____________________________________________________________________________________________________________________________________________
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
Documents
to the Noteholder. The Noteholder is now the owner and holder of the
Note and the Loan is serviced by NorthMarq Capital, Inc. (the
"Servicer").
|
|
F.
|
Original
Borrower has transferred or has agreed to transfer all of its right,
title, and interest in and to the Property to New Borrower (the
"Transfer").
|
|
|
G.
|
New
Borrower has agreed to assume all of Original Borrower's rights,
obligations, and liabilities created or arising under the Loan Documents,
with certain modifications, if any, as set forth in Exhibit C to
this Agreement (the "Assumption").
|
|
|
H.
|
Subject
to the full satisfaction of all conditions set forth below, the Noteholder
has agreed to consent to New Borrower's Assumption
.
|
|
|
I.
|
Original
Borrower desires to be released by the Noteholder from any and all
obligations and liabilities under the terms and provisions of the
Loan
Documents, and Noteholder has agreed to release Original Borrower
from
further liability (except as provided in Section 14 of this
Agreement).
|
NOW,
THEREFORE, in consideration of
these premises, the mutual covenants contained in this Agreement and other
good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:
|
1.
|
Assumption
of Obligations. New Borrower covenants, promises and agrees
that New Borrower, jointly and severally if more than one, will
unconditionally assume and be bound by all terms, provisions, and
covenants of the Loan Documents set forth in Exhibit B to this
Agreement, as if New Borrower had been the original maker of the
Loan
Documents. New Borrower will pay all sums to be paid and
perform each and every obligation to be performed by Original Borrower
under and in accordance with the terms and conditions of the Loan
Documents.
|
|
2.
|
Affirmation
by New Borrower. New Borrower agrees that the Loan
Documents set forth in Exhibit B to this Agreement are and will be
and remain in full force and effect, enforceable against New Borrower
in
accordance with their terms, except as modified by Exhibit C to
this Agreement. The Property will remain subject to the lien,
charge and encumbrance of the Security Instrument. Nothing
contained in this Agreement or done pursuant to this Agreement will
affect
or be construed to affect the lien, charge, and encumbrance of the
Security Instrument or the priority of the Security Instrument over
other
liens, charges and encumbrances. Nothing contained in this
Agreement or done pursuant to this Agreement will release or be construed
to release or affect the liability of any party or parties who may
now or
after the date of this Agreement be liable under or on account of
the Note
and the Security Instrument, except as expressly provided in this
Agreement. New Borrower will be liable for the payment of all
sums and the performance of every obligation required under the Loan
Documents to the extent set forth in the Loan Documents as modified
by
this
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
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Multifamily
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Agreement.
|
3.
|
Subordination
of Rights of Original Borrower and New Borrower. Any
indebtedness of Original Borrower to New Borrower, or of New Borrower
to
Original Borrower, now or existing after the date of this Agreement,
together with any interest on such debt, is hereby subordinated to
any
indebtedness of Original Borrower or New Borrower to the Noteholder
under
the Loan Documents. Any collection or receipts with respect to
any such indebtedness of Original Borrower to New Borrower, or of
New
Borrower to Original Borrower, will be collected, enforced and received
by
New Borrower or Original Borrower (as applicable) in trust for the
benefit
of the Noteholder, and will be paid over to the Noteholder on account
of
the indebtedness of Original Borrower and New Borrower to the Noteholder,
but without impairing or affecting in any manner the liability of
Original
Borrower or New Borrower under the other provisions of the Loan Documents
and this Agreement. However, until the occurrence of an Event
of Default under the Security Instrument, Original Borrower or New
Borrower (as applicable) will be entitled to retain for its own account
all payments made on account of the principal of and interest on
any such
indebtedness; provided no such payment is made more than ten (10)
days in
advance of the due date.
|
|
4.
|
Modification
of Note and Security Instrument. New Borrower and
Noteholder agree that the provisions of the Loan Documents are modified
as
set forth on Exhibit C to this
Agreement.
|
|
5.
|
Replacement
Reserve. New Borrower and Noteholder agree that a
Replacement Reserve Account will be established with Servicer with
payments to be made by New Borrower to such account in the amount
of Four
Thousand Five Hundred and No/100 Dollars ($4,500.00) per month, in
accordance with the terms and provisions of the Replacement Reserve
Agreement to be executed by New Borrower and Noteholder on the same
date
as this Agreement. The failure of New Borrower to
comply with the additional obligations contained in this Section
will
constitute an Event of Default under the Security Instrument, and
the
Noteholder will be entitled to exercise all remedies available to
it under
the terms of the Loan Documents. Servicer will transfer the
amount of Thirty Six Thousand and No/100 Dollars ($36,000.00) to
the New
Borrower’s Replacement Reserve Account as the Initial
Deposit. Original Borrower acknowledges and agrees that by
executing this Agreement it relinquishes all right, title and interest
it
has or may have in the Replacement Reserve
Account.
|
6.
Repairs.
No
Repair Escrow is required. Original Borrower acknowledges and agrees
that Noteholder is not holding any funds pursuant to the Repair Escrow, if
any,
executed by Original Borrower.
|
7.
|
Tax
and Insurance Escrow. On or prior to the execution of this
Agreement, to ensure that sufficient funds are available for the
payment
of real estate taxes, and fire, hazard or
other
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
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Multifamily
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insurance
premiums, an escrow account will be established with Servicer, with payments
to
be made by New Borrower to such account in the amount required by Noteholder
and/or Servicer. By execution of this Agreement, Original Borrower
acknowledges and agrees that it relinquishes any right, title or interest it
has
or may have in any escrow account held by Servicer in connection with the
Property.
|
8.
|
Guaranty
Requirements. On the date of execution of this
Agreement, Maxus Operating Limited Partnership, a Delaware limited
partnership, and Maxus Realty Trust, Inc., a Missouri corporation,
(jointly and severally if more than one, "New Guarantor")
will
execute and deliver to Noteholder the appropriate version of the
Guaranty
(the "Guaranty") under which the New Guarantor guarantees the full
and
punctual payment when due of the "Guaranteed Obligations" (as such
term is
defined in the Guaranty). The Guaranty will provide that New
Guarantor is personally liable for zero percent (0%) of the outstanding
principal balance of the Loan. New Guarantor automatically will
become liable for one hundred percent (100%) of all amounts payable
under
the Loan Documents upon the occurrence of certain events more specifically
set forth in the Guaranty.
|
|
9.
|
Ratification
of Original Guaranty. By signing the Acknowledgment and
Consent to this Agreement where indicated below, the Original
Guarantor:
|
|
|
a)
|
ratifies
the guaranty under which it guaranteed payments of certain amounts
under
the Loan Documents (the "Original Guaranty") only to the extent that
it
guaranties payments of the Borrower's liability under Section 18
(ENVIRONMENTAL HAZARDS) of the Security Instrument arising out of
conditions existing on or before the date of this Agreement ("Preexisting
Conditions"); and
|
|
b)
|
agrees
that Section 18 (ENVIRONMENTAL HAZARDS) of the Security Instrument
as
assumed by New Borrower and modified by this Agreement will continue
to be
guaranteed by the Original Guarantor as and to the full extent provided
in
the Original Guaranty for such Preexisting
Conditions.
|
|
c)
|
Noteholder
hereby releases Original Guarantor from any and all liability under
the
Original Guaranty except to the extent that the Original Guaranty
guarantees payment of the Original Borrower's liability under Section
18
of the Security Instrument arising out of Preexisting
Conditions.
|
|
10.
|
Representations. Original
Borrower represents and warrants to
Noteholder:
|
|
a)
|
As
of the date of this Agreement, the amount of the unpaid indebtedness
under
the Note is Four Million Eight Hundred Fourteen Thousand Nine Hundred
and
56/100 Dollars ($4,814,900.56).
|
|
b)
|
Interest
at the rate set forth in the Note has been paid to Noteholder in
full
through and including October 31,
2007.
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
5
Multifamily
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|
c)
|
All
of the representations and warranties in the Loan Documents are true
as of
the date on which Original Borrower executes this
Agreement.
|
|
d)
|
No
Event of Default (or event which, with the giving of notice or the
passage
of time or both, would be an Event of Default) has occurred or is
continuing under the Security
Instrument.
|
|
e)
|
Original
Borrower has no claims, offsets, defenses, or counterclaims of any
kind to
its performance under, or Noteholder's enforcement of, the Note and
the
other Loan Documents; and to the extent any such counterclaims, setoffs,
defenses or other causes of action may exist, whether known or unknown,
Original Borrower waives all such items. Original Borrower
acknowledges that all of Noteholder's actions in connection with
the Loan
have been in compliance with the terms of the applicable Loan Documents,
and Original Borrower acknowledges and agrees that Noteholder has
not
breached or failed to perform any duty or obligation that Noteholder
may
owe Original Borrower.
|
|
f)
|
There
are no suits or actions threatened or pending against Original Borrower
which affect the enforcement or validity of the Note, the Security
Instrument and/or the Loan
Documents.
|
|
11.
|
Additional
Transfers. Notwithstanding the Noteholder's consent to the
Transfer of the Property to New Borrower, New Borrower understands
and
agrees that such consent will in no way limit or operate as a waiver
of
the Noteholder's continuing rights under Section 21 of the Security
Instrument.
|
|
12.
|
Continuing
Obligations. New Borrower will execute, acknowledge and
deliver Moisture Management Plan Compliance Certificate and such
other
documents as Noteholder, or Servicer may require to document the
Assumption described in this Agreement and to more fully effectuate
the
provisions of this Agreement. The failure of New Borrower to
comply with the additional obligations contained in this Section
will
constitute an Event of Default under the Security Instrument, and
the
Noteholder will be entitled to exercise all remedies available to
it under
the terms of the Loan Documents.
|
|
13.
|
Additional
Obligations.
|
|
a)
|
To
induce the Noteholder to consent to New Borrower's Assumption, in
addition
to the covenants and agreements set forth in the Loan Documents,
New
Borrower agrees that it will comply with the Additional Obligations
set
forth on Exhibit D to this Agreement, if
applicable.
|
|
b)
|
The
failure of New Borrower to comply with the Additional Obligations,
if
applicable, will constitute an Event of Default under the Security
Instrument, and the
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
6
Multifamily
- For Use with Electronic Mortgage
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Noteholder
will be entitled to exercise all remedies available to it under the terms of
the
Loan Documents.
|
14.
|
Release
of Original Borrower; Rights of
Noteholder.
|
|
a)
|
In
reliance upon Original Borrower's representations and warranties,
the
Noteholder releases Original Borrower from any and all obligations
under
the terms and provisions of the Loan Documents; provided, however,
that
Original Borrower is not released from any liability pursuant to
Section
18 (ENVIRONMENTAL HAZARDS) of the Security Instrument arising out
of
conditions existing on or before the date of this Agreement ("Preexisting
Conditions").
|
|
b)
|
If
any material element of Original Borrower's representations and warranties
are materially false or misleading, this release will be canceled
and
Original Borrower will remain obligated under the Loan Documents
as though
there had been no release.
|
|
|
c)
|
If
at any time all or any part of any payment by Original Borrower which
has
been applied by the Noteholder to payment of the Loan on or prior
to the
date of this Agreement is or must be rescinded, repaid or returned
by the
Noteholder for any reason whatsoever (including, without limitation,
the
application of any bankruptcy, insolvency or other law), for purposes
of
this Agreement, to the extent that such payment is or must be rescinded,
repaid or returned, such payment will be deemed to have continued
to be
due and payable, notwithstanding such application by the Noteholder
and
this Agreement will continue to be effective as to such payment as
though
such application by the Noteholder had not been made. Original
Borrower and New Borrower will each remain liable to the Noteholder
for
the amount so rescinded, repaid, or returned to the same extent as
if such
amount had never originally been received by the Noteholder,
notwithstanding any cancellation of the Note, release or satisfaction
of
the Security Instrument, or the cancellation of any other Loan
Document.
|
|
15.
|
Expenses. New
Borrower's execution of this Agreement will constitute New Borrower's
agreement to pay all expenses incurred by the Noteholder in connection
with this Assumption, including without limitation the payment of
any
title endorsement costs, legal costs (including in-house legal
costs) attorney's fees, and assumption fees required by the
Noteholder.
|
|
16.
|
Miscellaneous.
|
|
a)
|
This
Agreement will be binding upon and will inure to the benefit of the
parties to the Agreement and their respective heirs, successors and
permitted assigns.
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
7
Multifamily
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|
b)
|
Except
as expressly modified by this Agreement, the Note, the Security Instrument
and all other Loan Documents will be unchanged and remain in full
force
and effect, and are hereby expressly approved, ratified and
confirmed. No provision of this Agreement that is held to be
inoperative, unenforceable or invalid will affect the remaining
provisions, and to this end all provisions of this Agreement are
declared
to be severable.
|
|
c)
|
Time
is of the essence of this
Agreement.
|
|
d)
|
This
Agreement may not be changed orally, but only by an agreement in
writing,
signed by the party against whom enforcement of any waiver, change,
modification or discharge is
sought.
|
|
e)
|
This
Agreement will be construed in accordance with the laws of the
jurisdiction in which the Property is
located.
|
|
f)
|
This
Agreement may be executed in counterparts, each of which will be
deemed an
original, but all of which together will constitute one and the same
document.
|
|
g)
|
All
notices given pursuant to the Agreement must be in writing and will
be
effectively given if personally delivered or, if mailed, postage
prepaid,
certified or registered mail, return receipt requested, to the addresses
of the parties set forth below or to such other address as any party
subsequently may designate in
writing.
|
|
17.
|
Executed
Originals. An executed original of this Agreement will be
(i) attached permanently to the Note as an amendment to the Note,
and (ii)
recorded in the Land Records as a modification to the Security
Instrument.
|
|
18.
|
State
Specific
Requirements. N/A.
|
ATTACHED
EXHIBITS. The following Exhibits are attached to this
Instrument:
[X] Exhibit
A
Legal Description of the Land (required).
[X] Exhibit
B
List of Loan Documents (required).
|
|
[X] Exhibit
C
|
Modifications
to Note and Security Instrument,
(required).
|
|
|
[X] Exhibit
D
|
Additional
Obligations of New Borrower, check if
applicable.
|
|
|
[X] Exhibit
E
|
Modification
to Assumption Agreement, check if
applicable.
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
8
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the date written above.
ORIGINAL
BORROWER:
Regency
North Associates, L.P.,
a
Missouri limited partnership
By: KELCOR,
INC.,
a
Missouri corporation
Its: General
Partner
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Its:
Vice
President
Address
for Notice to Original Borrower:
Regency
North Associates, L.P.
c/o
Maxus
Properties, Inc.
000
Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, XX 00000
STATE
OF
MISSOURI
)
)ss.
COUNTY
OF Clay
)
On
this
27 day of November, 2007, before me, the undersigned, a Notary
Public in and for the State of Missouri, duly commissioned and sworn, personally
appeared Xxxxx X. Xxxxxxx, to me known to be the Vice President of Kelcor,
Inc.,
a Missouri corporation, the General Partner of Regency North Associates, L.P.,
a
Missouri limited partnership, described in the foregoing instrument,
acknowledged to me that he signed and sealed the foregoing instrument as the
free and voluntary act and deed of the limited partnership, for the uses and
purposes therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the
day and year above written.
|
(Seal)
|
||
|
XXXXX
X. XXXXX
|
||
|
Notary
Public – Notary Seal
|
||
|
STATE
OF MISSOURI
|
||
|
Clay
County
|
||
|
My
Commission Expires Aug. 24. 2010
|
||
|
Commission
#06429203
|
/s/
Xxxxx X. Xxxxx
|
|
|
Notary
Public
|
||
|
My
Commission Expires: Aug. 24, 2010
|
[The
remainder of this page is intentionally left blank, signature pages
follow.]
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
9
Multifamily
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NEW
BORROWER:
Regency
North Acquisition, LLC,
a
Missouri limited liability company
By: Maxus
Realty Trust, Inc.,
a
Missouri corporation
Its: Manager
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Its:
Vice
President
Tax
identification number for New Borrower:
00-0000000
Address
for Notice to New Borrower:
Regency
North Acquisition, LLC
c/o
Maxus
Properties, Inc.
000
Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, XX 00000
STATE
OF
MISSOURI
)
)ss.
COUNTY
OF Clay
)
On
this
27 day of November, 2007, before me, the undersigned, a Notary Public in
and for the State of Missouri, duly commissioned and sworn, personally appeared
Xxxx X. Xxxxx, to me known to be the Vice President of Maxus Realty Trust,
Inc.,
a Missouri corporation, the Manager of Regency North Acquisition, LLC, a
Missouri limited liability company, described in the foregoing instrument,
acknowledged to me that he signed and sealed the foregoing instrument as the
free and voluntary act and deed of the limited liability company, for the uses
and purposes therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the
day and year above written.
|
(Seal)
|
||
|
XXXXX
X. XXXXX
|
||
|
Notary
Public – Notary Seal
|
||
|
STATE
OF MISSOURI
|
||
|
Clay
County
|
||
|
My
Commission Expires Aug. 24. 2010
|
||
|
Commission
#06429203
|
/s/
Xxxxx X. Xxxxx
|
|
|
Notary
Public
|
||
|
My
Commission Expires: Aug. 24, 2010
|
[The
remainder of this page is intentionally left blank, signature pages
follow.]
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
10
Multifamily
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CONSENTED
TO BY NOTEHOLDER:
Federal
Home Loan Mortgage Corporation
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Address
for Notice to Noteholder:
Federal
Home Loan Mortgage Corporation
0000
Xxxxx Xxxxxx Xxxxx, XX X-0X
XxXxxx,
XX 00000
Attn: Director
of Multifamily Portfolio Services
COMMONWEALTH
OF
VIRGINIA
)
)
ss.
COUNTY
OF
_______________________ )
The
foregoing instrument was acknowledged before me this _____ day of __________,
2007, by
___________________________,
the __________________________ of Federal Home Loan
Mortgage
Corporation, on behalf of the corporation.
___________________________________
Signature
of Person Taking Acknowledgment
___________________________________
Title
or
Rank
[The
remainder of this page is intentionally left blank, signature pages
follow.]
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
11
Multifamily
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ACKNOWLEDGED
AND CONSENTED TO:
ORIGINAL
GUARANTOR:
MJS
ASSOCIATES, INC.,
a
Missouri corporation
By:
/s/ Xxxx X. Xxxxx
Name: Xxxx
X. Xxxxx
Its: Vice
President
Address
for Notice to Original Guarantor:
MJS
Associates, Inc.
c/o
Maxus
Properties, Inc.
000
Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, XX 00000
STATE
OF
MISSOURI
)
)ss.
COUNTY
OF Clay
)
On
this
27 day of November, 2007, before me, the undersigned, a Notary
Public in and for the State of Missouri, duly commissioned and sworn, personally
appeared Xxxxx X. Xxxxxxx, to me known to be the Vice President of MJS
Associates, Inc., a Missouri corporation, described in the foregoing instrument,
acknowledged to me that he signed and sealed the foregoing instrument as the
free and voluntary act and deed of the corporation, for the uses and purposes
therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set
my hand and affixed my official seal, the day and year above
written.
|
(Seal)
|
||
|
XXXXX
X. XXXXX
|
||
|
Notary
Public – Notary Seal
|
||
|
STATE
OF MISSOURI
|
||
|
Clay
County
|
||
|
My
Commission Expires Aug. 24. 2010
|
||
|
Commission
#06429203
|
/s/
Xxxxx X. Xxxxx
|
|
|
Notary
Public
|
||
|
My
Commission Expires: Aug. 24, 2010
|
[The
remainder of this page is intentionally left blank, signature pages
follow.]
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
12
Multifamily
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NEW
GUARANTOR:
Maxus
Operating Limited Partnership,
a
Delaware limited partnership
By: Maxus
Realty GP, Inc.,
a
Delaware corporation
Its: General
Partner
By:
/s/ Xxxx X. Xxxxx
Name: Xxxx
X. Xxxxx
Title: Vice
President
Address
for Notice to New Guarantor:
Maxus
Operating Limited Partnership
c/o
Maxus
Properties, Inc.
000
Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, XX 00000
STATE
OF
MISSOURI
)
)ss.
COUNTY
OF Clay
)
On
this
27 day of November, 2007, before me, the undersigned, a Notary Public in
and for the State of Missouri, duly commissioned and sworn, personally appeared
Xxxx X. Xxxxx, to me known to be the Vice President of Maxus Realty GP, Inc.,
a
Delaware corporation, the General Partner of Maxus Operating Limited
Partnership, a Delaware limited partnership, described in the foregoing
instrument, acknowledged to me that he signed and sealed the foregoing
instrument as the free and voluntary act and deed of the limited partnership,
for the uses and purposes therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the
day and year above written.
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(Seal)
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XXXXX
X. XXXXX
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Notary
Public – Notary Seal
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STATE
OF MISSOURI
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Clay
County
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My
Commission Expires Aug. 24. 2010
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Commission
#06429203
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/s/
Xxxxx X. Xxxxx
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Notary
Public
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My
Commission Expires: Aug. 24, 2010
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[The
remainder of this page is intentionally left blank, signature pages
follow.]
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
13
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
NEW
GUARANTOR:
Maxus
Realty Trust, Inc.,
a
Missouri corporation
By:
/s/ Xxxx X. Xxxxx
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Name: Xxxx
X. Xxxxx
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Title: Vice
President
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Address
for Notice to New Guarantor:
Maxus
Realty Trust, Inc.
c/o
Maxus
Properties, Inc.
000
Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, XX 00000
STATE
OF
MISSOURI
)
)ss.
COUNTY
OF Clay
)
On
this
27 day of November, 2007, before me, the undersigned, a Notary
Public in and for the State of Missouri, duly commissioned and sworn, personally
appeared Xxxx X. Xxxxx, to me known to be the Vice President of Maxus Realty
Trust, Inc., a Missouri corporation, described in the foregoing instrument,
acknowledged to me that he signed and sealed the foregoing instrument as the
free and voluntary act and deed of the corporation, for the uses and purposes
therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set
my hand and affixed my official seal, the day and year above
written.
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(Seal)
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XXXXX
X. XXXXX
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Notary
Public – Notary Seal
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|
STATE
OF MISSOURI
|
||
|
Clay
County
|
||
|
My
Commission Expires Aug. 24. 2010
|
||
|
Commission
#06429203
|
/s/
Xxxxx X. Xxxxx
|
|
|
Notary
Public
|
||
|
My
Commission Expires: Aug. 24, 2010
|
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
14
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
EXHIBIT
A
REQUIRED
(Legal
Description of Land)
Tracts
1
and 2, REGENCY NORTH, a subdivision in Kansas City, Clay County,
Missouri.
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
A-1
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
EXHIBIT
B
REQUIRED
(List
of Loan Documents that will be Assumed)
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1.
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Multifamily
Note dated as of December 27, 2000, in the original principal amount
of
$5,250,000.00, executed by Original Borrower and payable to the Original
Lender.
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2.
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Multifamily
Deed of Trust, Assignment of Rents and Security Agreement dated as
of
December 27, 2000 executed by Original Borrower in favor of Original
Lender.
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____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
B-1
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
EXHIBIT
C
REQUIRED
(Changes
to Loan Documents)
I.
Modifications to all Loan Documents
As
used in the Loan Documents, all reference to Borrower will be deemed to refer
to
New Borrower.
II. Modifications
to the Note
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1.
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Paragraph
9(c) of the Note is hereby amended to add the following subparagraph
(4)
as follows:
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(4)
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failure
by Borrower to pay the amount of any water and sewer charges that
could
become a lien on the Mortgaged Property, other charges or assessments
that
could become a lien on the Mortgaged Property, or ground rents in
accordance with the terms of the Security
Instrument.
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III. Modifications
to the Security Instrument
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1.
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Section
7 of the Security Instrument is deleted in its entirety and the following
substituted in its place:
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7. DEPOSITS
FOR TAXES, INSURANCE AND OTHER CHARGES.
(a) Unless
this requirement is waived in writing by Lender, which waiver may be contained
in this Section 7(a), Borrower shall deposit with Lender on the day monthly
installments of principal or interest, or both, are due under the Note (or
on
another day designated in writing by Lender), until the Indebtedness is paid
in
full, an additional amount sufficient to accumulate with Lender the entire
sum
required to pay, when due, the items marked "Collect" below. Lender
will not require the Borrower to make Imposition Deposits with respect to the
items marked "Deferred" below.
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[Collect]
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Hazard
Insurance premiums or other insurance premiums required by Lender
under
Section 19,
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[Collect]
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Taxes,
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[Deferred]
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water
and sewer charges (that could become a lien on the Mortgaged
Property),
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ASSUMPTION
AGREEMENT Page
C-1
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
[N/A] ground
rents,
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[Deferred]
|
assessments
or other charges (that could become a lien on the Mortgaged
Property)
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The
amounts deposited under the preceding sentence are collectively referred to
in
this Instrument as the "Imposition Deposits." The obligations of
Borrower for which the Imposition Deposits are required are collectively
referred to in this Instrument as "Impositions." The amount of the
Imposition Deposits shall be sufficient to enable Lender to pay each Imposition
before the last date upon which such payment may be made without any penalty
or
interest charge being added. Lender shall maintain records indicating
how much of the monthly Imposition Deposits and how much of the aggregate
Imposition Deposits held by Lender are held for the purpose of paying Taxes,
insurance premiums and each other Imposition.
(b) Imposition
Deposits shall be held in an institution (which may be Lender, if Lender is
such
an institution) whose deposits or accounts are insured or guaranteed by a
federal agency. Lender shall not be obligated to open additional
accounts or deposit Imposition Deposits in additional institutions when the
amount of the Imposition Deposits exceeds the maximum amount of the federal
deposit insurance or guaranty. Lender shall apply the Imposition
Deposits to pay Impositions so long as no Event of Default has occurred and
is
continuing. Unless applicable law requires, Lender shall not be
required to pay Borrower any interest, earnings or profits on the Imposition
Deposits. As additional security for all of Borrower's obligations
under this Instrument and the other Loan Documents, Borrower hereby pledges
and
grants to Lender a security interest in the Imposition Deposits and all proceeds
of, and all interest and dividends on, the Imposition Deposits. Any
amounts deposited with Lender under this Section 7 shall not be trust funds,
nor
shall they operate to reduce the Indebtedness, unless applied by Lender for
that
purpose under Section 7(e).
(c) If
Lender receives a xxxx or invoice for an Imposition, Lender shall pay the
Imposition from the Imposition Deposits held by Lender. Lender shall
have no obligation to pay any Imposition to the extent it exceeds Imposition
Deposits then held by Lender. Lender may pay an Imposition according
to any xxxx, statement or estimate from the appropriate public office or
insurance company without inquiring into the accuracy of the xxxx, statement
or
estimate or into the validity of the Imposition.
(d) If
at any time the amount of the Imposition Deposits held by Lender for payment
of
a specific Imposition exceeds the amount reasonably deemed necessary by Lender,
the excess shall be credited against future installments of Imposition
Deposits. If at any time the amount of the Imposition Deposits held
by Lender for payment of a specific Imposition is less than the amount
reasonably estimated by Lender to be necessary, Borrower shall pay to Lender
the
amount of the deficiency within 15 days after Notice from Lender.
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
C-2
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
(e) If
an Event of Default has occurred and is continuing, Lender may apply any
Imposition Deposits, in any amounts and in any order as Lender determines,
in
Lender's discretion, to pay any Impositions or as a credit against the
Indebtedness. Upon payment in full of the Indebtedness, Lender shall refund
to
Borrower any Imposition Deposits held by Lender.
(f) If
Lender does not collect an Imposition Deposit with respect to an Imposition
either marked "Deferred" in Section 7(a) or pursuant to a separate written
waiver by Lender, then on or before the date each such Imposition is due, or
on
the date this Instrument requires each such Imposition to be paid, Borrower
must
provide Lender with proof of payment of each such Imposition for which Lender
does not require collection of Imposition Deposits. Lender may revoke
its deferral or waiver and require Borrower to deposit with Lender any or all
of
the Imposition Deposits listed in Section 7(a), regardless of whether any such
item is marked "Deferred" in such section, upon Notice to Borrower, (i) if
Borrower does not timely pay any of the Impositions, (ii) if Borrower fails
to
provide timely proof to Lender of such payment, or (iii) at any time during
the
existence of an Event of Default.
(g) In
the event of a Transfer prohibited by or requiring Lender's approval under
Section 21, Lender's waiver of the collection of any Imposition Deposit in
this
Section 7 may be modified or rendered void by Lender at Lender's option by
Notice to Borrower and the transferee(s) as a condition of Lender's approval
of
such Transfer.
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2.
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Section
19(b) of the Security Instrument is deleted in its entirety and the
following substituted in its place:
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(b)
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All
premiums on Hazard Insurance policies required under Section 19(a)
shall
be paid in the manner provided in Section 7, unless Lender has designated
in writing another method of payment. All such policies shall
also be in a form approved by Lender. All policies of property
damage insurance shall include a non-contributing, non-reporting
mortgage
clause in favor of, and in a form approved by, Lender. Lender
shall have the right to hold the original policies or duplicate original
policies of all Hazard Insurance required by Section
19(a). Borrower shall promptly deliver to Lender a copy of all
renewal and other notices received by Borrower with respect to the
policies and all receipts for paid premiums. Prior to the
expiration date of any Hazard Insurance policy, Borrower shall deliver
to
Lender evidence acceptable to Lender that the policy has been
renewed. If Borrower has not delivered the original (or a
duplicate original) of a renewal policy prior to the expiration date
of
any Hazard Insurance policy, Borrower shall deliver the original
(or a
duplicate original) of a renewal policy in
a
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____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
C-3
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
form
satisfactory to Lender within 120 days after the expiration date of the original
policy.
3. A
new Section 50 is hereby added to the Security Instrument as
follows:
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50.
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Moisture
Management Plan and Mold. Borrower must have or must
establish and must adhere to a moisture management plan (an
"MMP"). The Borrower must keep all MMP documentation at the
Mortgaged Property or at the management agent's office and available
for
the Lender or the Loan Servicer to review during any annual assessment
or
other inspection of the Mortgaged Property that is required by
Lender.
|
If
Lender
determines that Mold has developed at the Mortgaged Property as a result of
a
water intrusion event or leak, Lender, at Lender's discretion, may require
that
a professional inspector inspect the Mortgaged Property as frequently as Lender
determines is necessary until any issue with Mold and its cause(s) are resolved
to Lender's satisfaction. Such inspection shall be limited to a
visual and olfactory inspection of the area that has experienced the water
intrusion event, leak or Mold. Borrower shall be responsible for the
cost of such professional inspection and any remediation deemed to be necessary
as a result of the professional inspection. After any issue with
Mold, water intrusion or leaks is remedied to Lender's satisfaction, Lender
shall not be entitled to require a professional inspection any more frequently
than once every three years unless Lender is otherwise aware of subsequent
Mold
as a result of a water intrusion event or leak.
If
Lender
or Loan Servicer determines not to conduct an annual inspection of the Mortgaged
Property, and in lieu thereof Lender requests a certification, Borrower shall
be
prepared to provide and must actually provide to Lender a factually correct
certification each year that the annual inspection is waived to the following
effect:
Borrower
has not received any written complaint, notice, letter or other written
communication from tenants, management agent or governmental authorities
regarding odors, indoor air quality, mold, fungus, microbial contamination
or
pathogenic organisms ("Mold") or any activity, condition, event or omission
that
causes or facilitates the growth of Mold on or in any part of the Mortgaged
Property or if Borrower has received any such written complaint, notice, letter
or other written communication that Borrower has investigated and determined
that no Mold activity, condition or event exists or alternatively
has fully and properly remediated such activity, condition, event or
omission in compliance with the Moisture Management Plan for the Mortgaged
Property.
If
Borrower is unwilling or unable to provide such certification, Lender may
require a professional inspection of the Mortgaged Property at Borrower's
expense.
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
C-4
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
EXHIBIT
D
APPLICABLE
_____
NOT
APPLICABLE X
(Additional
Obligations of New Borrower)
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
D-1
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
EXHIBIT
E
APPLICABLE
_____
NOT
APPLICABLE X
(Modification
to Assumption Agreement)
____________________________________________________________________________________________________________________________________________
ASSUMPTION
AGREEMENT Page
E-1
Multifamily
- For Use with Electronic Mortgage
Documents (8/13/2004)
