Exhibit 10.17
ASSUMPTION AND RELEASE AGREEMENT
This Assumption and Release Agreement ("Agreement") is made effective as of
September 28, 2001, by and among WATERTON ROCK, LIMITED, an Arkansas limited
partnership ("Transferor"), XXXXX X. XXXXXXXX and XXXXX X. XXXXX ("Original Key
Principals") LANDINGS ACQUISITION, L.L.C., a Missouri limited liability company
("Transferee"), MAXUS REALTY TRUST, INC., a Missouri corporation (the "New Key
Principal") and XXXXXX MAE, a corporation organized and existing under the laws
of the United States of America, formerly known as Federal National Mortgage
Association.
RECITALS:
A. Xxxxxx Xxx is the holder of that certain Multifamily Note (as modified
by the Addendum to Multifamily Note, the "Note") dated August 15, 1997, in the
original principal amount of $4,000,000.00 made by Transferor to Berkshire
Mortgage Finance Limited Partnership, a Massachusetts limited partnership
("Original Lender"), which Note evidences a loan ("Loan") made by Original
Lender to Transferor. To secure the repayment of the Note, Transferor also
executed and delivered a Multifamily Mortgage, Assignment of Rents and Security
Agreement, including a Rider to Multifamily Instrument (the "Security
Instrument"), dated as of August 15, 1997, recorded in the Office of the Circuit
County Clerk and Recorder of Pulaski County, State of Arkansas on August 18,
1997, as Instrument No. 97-052920 that grants a lien on the property described
in Exhibit A to this Agreement (the "Property"). The Transferor is liable for
the payment and performance of all of Transferor's obligations under the Note,
the Security Instrument and all other documents executed in connection with the
Loan, as listed on Exhibit B to this Agreement (collectively, the "Loan
Documents"). Each of the Loan Documents has been duly assigned or endorsed to
Xxxxxx Mae. The current servicer of the Loan is Original Lender ("Servicer").
B. The Original Key Principals are liable for the obligations under the
Acknowledgment and Agreement of Key Principal to Personal Liability for the
Exceptions to Non-Recourse Liability contained in the Note and Security
Instrument (the "Acknowledgment").
C. Xxxxxx Xxx has been asked to consent to the transfer of the Property to
the Transferee and the assumption by the Transferee of the obligations of the
Transferor under the Loan Documents.
D. Xxxxxx Mae has been asked to consent to the release of the Original Key
Principals from their respective obligations under the Acknowledgment and accept
the assumption by the New Key Principal of the Original Key Principals'
obligations under the Acknowledgment.
E. Xxxxxx Xxx has agreed to consent to the transfer of the Property by
Transferor to Transferee subject to the terms and conditions stated below.
In consideration of the foregoing and the mutual covenants and promises set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Xxxxxx Mae, Transferor,
Original Key Principals, Transferee and New Key Principal agree as follows:
1. Assumption of Obligations. The Transferee agrees to assume all of the
payment and performance obligations of the Transferor set forth in the Note, the
Security Instrument and the other Loan Documents in accordance with their
respective terms and conditions, as the same may be modified by this Agreement,
including without limitation, payment of all sums due under the Note. The
Transferee further agrees to abide by and be bound by all of the terms of the
Loan Documents, all as though each of the Loan Documents had been made, executed
and delivered by the Transferee.
2. Transferor's and Original Key Principals' Representations and
Warranties. The Transferor and the Original Key Principals represent and warrant
to Xxxxxx Xxx as of the date of this Agreement that:
(a) The Note has an unpaid principal balance of $3,839,130.53, and
prior to default bears interest at the rate of seven and 66/100 percent (7.66%)
per annum;
(b) The Note requires that monthly payments of principal and interest
in the amount of $28,408.12 be made on or before the first (1st) day of each
month, continuing to and including September 1, 2007, when all sums due under
the Loan Documents will be immediately due and payable in full;
(c) Based solely on the title commitment delivered to Lender in
connection with this transaction and Transferor's and Original Key Principals'
knowledge, the Security Instrument is a valid first lien on the Property for the
full unpaid principal amount of the Loan and all other amounts as stated in the
Security Instrument;
(d) There are no defenses, offsets or counterclaims to the Note, the
Security Instrument or the other Loan Documents;
(e) There are no defaults by the Transferor under the provisions of
the Note, the Security Instrument or the other Loan Documents;
(f) All provisions of the Note, the Deed of Trust and other Loan
Documents are in full force and effect;
(g) There are no subordinate liens of any kind covering or relating to
the Property, nor are there any mechanics' liens or liens for unpaid taxes or
assessments encumbering the Property, nor has notice of a lien or notice of
intent to file a lien been received; and
The Transferor and Original Key Principals understand and intend that Xxxxxx Mae
will rely on the representations and warranties contained herein.
3. Transferee's and the New Key Principals' Representations and Warranties.
The Transferee and the New Key Principal represent and warrant to Xxxxxx Xxx as
of the date of this Agreement that neither Transferee nor any New Key Principal
has any knowledge that any of the representations made by Transferor and
Original Key Principals in Paragraph 2 above are not true and correct.
4. Consent to Transfer. Xxxxxx Mae hereby consents to the transfer of the
Property and to the assumption by the Transferee of all of the obligations of
the Transferor under the Loan Documents, subject to the terms and conditions set
forth in this Agreement. Xxxxxx Mae's consent to the transfer of the Property to
the Transferee is not intended to be and shall not be construed as a consent to
any subsequent transfer which requires the Lender's consent pursuant to the
terms of the Security Instrument.
5. Assumption by the New Key Principal of Liability for the Exceptions to
Non-Recourse. New Key Principal hereby assumes all liability under the
provisions of the Acknowledgement.
6. Release of Transferor and Original Key Principals. In reliance on the
Transferor's and the Original Key Principals' and the Transferee's
representations and warranties in this Agreement, Xxxxxx Mae releases Transferor
and the Original Key Principals from all of their respective obligations under
the Loan Documents, provided, however, that the
Transferor is not released from any liability pursuant to this Agreement or
paragraph D (Environmental Hazards) of the Rider to Multifamily Instrument
executed by the Transferor as a part of the Security Instrument for any
liability that relates to the period prior to the date hereof, regardless of
when such environmental hazard is discovered. If any material element of the
representations and warranties made by the Transferor and Original Key
Principals contained herein is false as of the date of this Agreement, then the
release set forth in this Paragraph 6 will be cancelled as of the date of this
Agreement and the Transferor and Original Key Principals will remain obligated
under the Loan Documents as though there had been no such release.
7. Priority/Modification. This Agreement embodies and constitutes the
entire understanding among the parties with respect to the transactions
contemplated herein, and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Agreement. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged, or terminated except by an instrument in
writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge, or termination is sought, and then only to
the extent set forth in such instrument. Except as expressly modified hereby,
the Note, Security Instrument and other Loan Documents shall remain in full
force and effect and this Agreement shall have no effect on the priority or
validity of the liens set forth in the Security Instrument or the Loan
Documents, which are incorporated herein by reference. Transferor and the
Original Key Principals hereby ratify the agreements made by them to Xxxxxx Xxx
in connection with the Loan and agree that, except to the extent modified
hereby, all of such agreements remain in full force and effect.
8. No Impairment of Lien. Nothing set forth herein shall affect the
priority or extent of the lien of any of the Loan Documents, nor, except as
expressly set forth herein, release or change the liability of any party who may
now be or after the date of this Agreement, become liable, primarily or
secondarily, under the Loan Documents.
9. Costs. The Transferee and the Transferor agree to pay all fees and costs
(including attorneys' fees) incurred by Xxxxxx Mae and the Servicer in
connection with Xxxxxx Mae's consent to and approval of the transfer of the
Property and a transfer fee of $38,391.31 in consideration of the consent to
that transfer.
10. Financial Information. The Transferee and New Key Principal represent
and warrant to Xxxxxx Mae that all financial information and information
regarding the management capability of Transferee and New Key Principal provided
to the Servicer or Xxxxxx Xxx was true and correct as of the date provided to
the Servicer or Xxxxxx Mae and remains materially true and correct as of the
date of this Agreement.
11. Addresses. Transferee's address for notice hereunder and under the Loan
Documents is:
Landings Acquisition, L.L.C.
000 Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
Transferor's address for notice hereunder and under the Loan Documents is:
Waterton Rock, Limited
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
12. Complete Release. Transferee and Transferor and the Original Key
Principals and the New Key Principal, jointly and severally as between
Transferee and New Key Principal, unconditionally and irrevocably release and
forever discharge Original Lender, Xxxxxx Xxx, and their respective successors,
assigns, agents, directors, officers, employees, and attorneys, and each current
or substitute trustee under the Security Instrument (collectively, the
"Indemnitees") from all Claims, as defined below, and jointly and severally
agree to indemnify Indemnitees, and hold them harmless from any and all claims,
losses, causes of action, costs and expenses of every kind or character in
connection with the Claims or the transfer of the Property. Notwithstanding the
foregoing, Transferor and Original Key Principals shall not be responsible for
any Claims arising from the action or inaction of Transferee and New Key
Principal, and Transferee and New Key Principal shall not be responsible for any
Claims arising from the action or inaction of Transferor and Original Key
Principals. As used in this Agreement, the term "Claims" shall mean any and all
possible claims, demands, actions, costs, expenses and liabilities whatsoever,
known or unknown, at law or in equity, originating in whole or in part, on or
before the date of this Agreement, which the Transferor, Original Key
Principals, or any of their respective partners, members, officers, agents or
employees, may now or hereafter have against the Indemnitees, if any and
irrespective of whether any such Claims arise out
of contract, tort, violation of laws, or regulations, or otherwise in connection
with any of the Loan Documents, including, without limitation, any contracting
for, charging, taking, reserving, collecting or receiving interest in excess of
the highest lawful rate applicable thereto and any loss, cost or damage, of any
kind or character, arising out of or in any way connected with or in any way
resulting from the acts, actions or omissions of Indemnitees, including any
requirement that the Loan Documents be modified as a condition to the
transactions contemplated by this Agreement, any charging, collecting or
contracting for prepayment premiums, transfer fees, or assumption fees, any
breach of fiduciary duty, breach of any duty of fair dealing, breach of
confidence, breach of funding commitment, undue influence, duress, economic
coercion, violation of any federal or state securities or Blue Sky laws or
regulations, conflict of interest, NEGLIGENCE, bad faith, malpractice,
violations of the Racketeer Influenced and Corrupt Organizations Act,
intentional or negligent infliction of mental distress, tortious interference
with contractual relations, tortious interference with corporate governance or
prospective business advantage, breach of contract, deceptive trade practices,
libel, slander, conspiracy or any claim for wrongfully accelerating the Note or
wrongfully attempting to foreclose on any collateral relating to the Note, but
in each case only to the extent permitted by applicable law. Transferor and
Transferee agree that Xxxxxx Mae and Original Lender have no fiduciary or
similar obligations to Transferor or Transferee and that their relationship is
strictly that of creditor and debtor. This release is accepted by Xxxxxx Xxx and
Original Lender pursuant to this Agreement and shall not be construed as an
admission of liability on the part of either. Transferor and Transferee and the
Original Key Principals and New Key Principal hereby represent and warrant that
they are the current legal and beneficial owners of all Claims, if any, released
hereby and have not assigned, pledged or contracted to assign or pledge any such
Claim to any other person.
13. Miscellaneous.
(a) This Agreement shall be construed according to and governed by the
laws of the jurisdictions in which the Property is located without regard to its
conflicts of law principles.
(b) If any provision of this Agreement is adjudicated to be invalid,
illegal or unenforceable, in whole or in part, it will be deemed omitted to that
extent and all other provisions of this Agreement will remain in full force and
effect.
(c) No change or modification of this Agreement shall be valid unless
the same is in writing and signed by all parties hereto.
(d) The captions contained in this Agreement are for convenience of
reference only and in no event define, describe or limit the scope or intent of
this Agreement or any of the provisions or terms hereof.
(e) This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, legal representatives, successors and
assigns.
(f) This Agreement may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED,
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TRANSFEREE:
LANDINGS ACQUISITION, L.L.C.,
a Missouri limited liability company
By: /s/ Xxxx X. Xxxxx (Seal)
Name: Xxxx X. Xxxxx
Title: Manager
Date: September 25, 2001
NEW KEY PRINCIPAL:
By: MAXUS REALTY TRUST, INC.,
a Missouri corporation (Seal)
Name: /s/ Xxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx, XX 00000
Date: September 24, 2001
TRANSFEROR:
WATERTON ROCK, LIMITED,
an Arkansas limited partnership
By: Waterton Rock Investors, Limited,
an Arkansas limited partnership,
its General Partner
By: SV, L.L.C. d/b/a Waterton SV, L.L.C.,
an Illinois limited liability company,
its General Partner
By: /s/ Xxxxx X. Xxxxx (Seal)
Name: Xxxxx X. Xxxxx
Title: Managing Member
Date: September 25, 2001
ORIGINAL KEY PRINCIPALS:
/s/ Xxxxx X. Xxxxxxxx (Seal)
Name: Xxxxx X. Xxxxxxxx
Date: September 25, 2001
/s/ Xxxxx X. Xxxxx (Seal)
Name: Xxxxx X. Xxxxx
Date: September 25, 2001
XXXXXX XXX
By: /s/ Xxxxx Xxxx (Seal)
Name: Xxxxx Xxxx
Title: Assistant Vice President
Date: September 24, 0000
XXXXX XX XXXXXXXX, Xxxx Xxxxxx ss:
On this 24th day of September, 2001, before me, the undersigned officer,
personally appeared Xxxx X. Xxxxx, who acknowledged himself to be the Manager of
LANDINGS ACQUISITION, L.L.C., a limited liability company, and that he as such
Manager of LANDINGS ACQUISITION, L.L.C., being authorized to do so, executed the
foregoing instrument for the purposes therein contained in the name and on
behalf of LANDINGS ACQUISITION, L.L.C.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
Title of Officer: Notary Public
My commission expires: August 24, 2002
[NOTARIAL SEAL]
STATE OF MISSOURI, Clay County ss:
On this 24th day of September, 2001, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxxx, who acknowledged himself to be the
President of MAXUS REALTY TRUST, INC., a corporation, and that he as such
President of MAXUS REALTY TRUST, INC., being authorized to do so, executed the
foregoing instrument for the purposes therein contained in the name and on
behalf of MAXUS REALTY TRUST, INC.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
Title of Officer: Notary Public
My commission expires: August 24, 2002
[NOTARIAL SEAL]
STATE OF ILLINOIS, Xxxx County ss:
On this 25th day of September, 2001, before me, the undersigned officer,
personally appeared Xxxxx X. Xxxxx, who acknowledged himself to be the Managing
Member of SV, L.L.C. (d/b/a Waterton SV, L.L.C.), the limited liability company
named in the foregoing instrument as the General Partner of Waterton Rock
Investors, Limited, a limited partnership and the General Partner of WATERTON
ROCK, LIMITED, a limited partnership, and that he as such Managing Member of SV,
L.L.C., the General Partner of Waterton Rock Investors, Limited, the General
Partner of WATERTON ROCK, LIMITED, being authorized to do so, executed the
foregoing instrument for the purposes therein contained in the name of such
Limited Partnership by himself as Managing Member of SV, L.L.C., the General
Partner of Waterton Rock Investors, Limited, the General Partner of WATERTON
ROCK, LIMITED, on behalf of WATERTON ROCK, LIMITED.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx Xxxxxx
Title of Officer: Notary
My commission expires: August 4, 2003
[NOTARIAL SEAL]
STATE OF ILLINOIS, Xxxx County ss:
On this 25th day of September 2001, before me, the undersigned officer,
personally appeared XXXXX X. XXXXXXXX, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx Xxxxxx
Title of Officer: Notary
My commission expires: August 21, 2003
[NOTARIAL SEAL]
STATE OF ILLINOIS, Xxxx County ss:
On this 25th day of September 2001, before me, the undersigned officer,
personally appeared XXXXX X. XXXXX, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same for the purposes therein contained.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx Xxxxxx
Title of Officer: Notary
My commission expires: August 21, 2003
[NOTARIAL SEAL]
District of Columbia County ss:
On this 24th day of September 2001, before me, the undersigned officer,
personally appeared Xxxxx X. Xxxx, who acknowledged himself/herself to be a
Assistant Vice President of XXXXXX MAE, the corporation named in the foregoing
instrument, and that he/she as such Assistant Vice President of XXXXXX XXX,
being acknowledged to do so, executed the foregoing instrument for the purposes
therein contained in the name of himself/herself as Assistant Vice President of
XXXXXX MAE, on behalf of XXXXXX XXX.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Prulikowski
Title of Officer: Notary
My commission expires: September 30, 2005
[NOTARIAL SEAL]
EXHIBIT A
to
ASSUMPTION AND RELEASE AGREEMENT
(ATTACHED)
EXHIBIT A
THE land located in the County of Pulaski, State of Arkansas, and described as
follows:
Part of Tracts 3, 6, and 7, Hillvale Addition, Little Rock, Pulaski County,
Arkansas, more particularly described as follows: Beginning at the
Northwest corner of Tract 7, Hillvale Addition; thence South 67 degrees 35
minutes 20 seconds East 35.00 feet; thence South 48 degrees 59 minutes 16
seconds east 80.00 feet; thence South 77 degrees 17 minutes 24 seconds East
72.00 feet; thence South 30 degrees 18 minutes 29 seconds east 78.00 feet;
thence South 68 degrees 07 minutes 04 seconds East 124.00 feet to a point
on the East line of the West 1/2 of said Tract 7; thence South 00 degrees
45 minutes 54 seconds West along said East line 374.98 feet to a point on
the North line of a 50 foot wide Little Rock Water Works Easement; thence
North 87 degrees 25 minutes 51 seconds West along said North line 219.11
feet; thence North 78 degrees 18 minutes 19 seconds West continuing along
said North line 290.87 feet; thence North 81 degrees 37 minutes 00 seconds
West continuing along said North line 298.70 feet; thence North 33 degrees
50 minutes 55 seconds East 350.00 feet; thence North 8 degrees 54 minutes
57 seconds East 60.00 feet; thence North 53 degrees 57 minutes 51 seconds
East 80.00 feet; thence North 42 degrees 42 minutes 56 seconds East 99.00
feet; thence North 67 degrees 48 minutes 07 seconds East 98.00 feet; thence
South 66 degrees 15 minutes 55 seconds East 50.00 feet; thence South 46
degrees 21 minutes 58 seconds East 20.00 feet to a point on the East line
of Tract 3, Hillvale Addition; thence South 00 degrees 54 minutes 05
seconds West along said East line 15.00 feet to the Point of Beginning.
LENDER'S COUNSEL MUST PREPARE AN EXHIBIT B, WHICH INCLUDES ALL OF
THE EXECUTED LOAN DOCUMENTS.
THIS PAGE IS AN EXAMPLE ONLY
EXHIBIT B
to
ASSUMPTION AND RELEASE AGREEMENT
[insert list of all loan documents executed in connection with the original
Loan]
1. Multifamily Note dated August 15, 1997, by Transferor for the benefit of
Original Lender, as modified by an Addendum to Note dated August 15, 1997.
2. Multifamily Mortgage, Assignment of Rents and Security Agreement,
including a Rider to Multifamily Instrument, dated as of August 15, 1997, by
Transferor for the benefit of Original Lender, recorded with the Office of the
Circuit County Clerk and Recorder of Pulaski County, Arkansas as Instrument No.
97-052920, as assigned to Xxxxxx Xxx by an Assignment of Multifamily Mortgage
dated as of August 15, 1997, and recorded with the Office of the Circuit County
Clerk and Recorder of Pulaski County, Arkansas as Instrument No. 97-052921.
3. UCC-1 Financing Statement naming Transferor as debtor, Original Lender
as Secured Party and Xxxxxx Mae as assignee of secured party recorded with the
Office of the Circuit County Clerk and Recorder of Pulaski County, Arkansas on
August 18, 1997, as Instrument Nos. 97-052922 and 97-052923, and the Arkansas
Secretary of State on August 21, 1997, as Instrument No. 1090370.
4. Replacement Reserve and Security Agreement dated as of August 15, 1997,
by and between Transferor and Original Lender.
