ASSUMPTION AGREEMENT FHLMC Loan No. 002732432

 

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).

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

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.

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

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.

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

14.  

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.

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.

 

[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.

(Seal)

GRACE E. BALES

Notary Public – Notary Seal

STATE OF MISSOURI

Clay County

My Commission Expires Aug. 24. 2010

Commission #06429203

Notary Public

My Commission Expires: Aug. 24, 2010

 

Name:  John W. Alvey

 

Title:  Vice President

1.

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.

2.

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.

1.

Paragraph 9(c) of the Note is hereby amended to add the following subparagraph (4) as follows:

 

(4)

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.

1.

Section 7 of the Security Instrument is deleted in its entirety and the following substituted in its place:

 

  [Collect]

Hazard Insurance premiums or other insurance premiums required by Lender under Section 19,

 

[Collect]

Taxes,

      [Deferred]

water and sewer charges (that could become a lien on the Mortgaged Property),

      [Deferred]

assessments or other charges (that could become a lien on the Mortgaged Property)

2.

Section 19(b) of the Security Instrument is deleted in its entirety and the following substituted in its place:

 

(b)

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

 

50.

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.