Exhibit 10.10
Amendment to Multifamily Mortgage, Assignment
Of Rents and Security Agreement
(Page 1 of 1) Prepared By:
EF&A FUNDING, L.L.C.
0000 00XX XXXXXX XX
XXXXX 000
XXXXXXX, XX 00000
RE: CHALET I
XXXXXX XXX # 1668655895
EF&A # 00-0000000
AMENDMENT TO MULTIFAMILY MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT TO MULTIFAMILY MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (herein "Amendment") is made on the 27th day of September, 2001, by
and between the undersigned (herein "Borrower") and Xxxxxx Mae, whose address is
0000 Xxxxxxxxx Xxx. XX, "Xxxxxx XX" Xxxxxxxxxx, XX 00000-0000 together with its
successors, assigns and transferees (herein "Xxxxxx Xxx").
Recitals
A. Borrower is the owner of that certain parcel of real property described on
Exhibit A attached hereto and incorporated herein by reference for all purposes
(the "Property"). By Assumption and Release Agreement dated as of September 27,
2001, Borrower became indebted to Xxxxxx Mae, successor in interest to EF&A
Funding, L.L.C., a Michigan limited liability company (" Original Lender"), for
a loan in the original principal amount of $4,240,000.00, which loan is
evidenced by that certain Multifamily Note dated September 11, 1998 (such debt
is herein referred to as the "Loan") and secured by a Multifamily Mortgage,
Assignment of Rents and Security Agreement (the "Instrument") in favor of
Original Lender, dated September 11, 1998, recorded in the real property records
of Shawnee County, Kansas under Book 3257 Page 416.
B. In connection with the assumption of the Loan, Borrower agreed with Lender
(i) that the Loan would be cross-collateralized and cross-defaulted with that
certain loan in the original principal amount of $1,600,000.00 which loan is
evidenced by that certain Multifamily Note dated September 11, 1998 and secured
by that certain Multifamily Mortgage, Assignment of Rents and Security Agreement
dated September 11, 1998 recorded in the real property records of Shawnee
County, Kansas under Book 3257, Page 367 (the "Chalet II Mortgage") and
encumbering that certain multifamily residential property commonly known as
Chalet II Apartments and legally described on Exhibit B hereto, which loan is
held by Xxxxxx Xxx, (ii) that each loan would be secured by a first lien on the
property for which the loan was made, and a cross lien on the Chalet II Project,
and (iii) that a default with respect to one of the loans would constitute a
default with respect to both loans.
C. Lender and Borrower now wish to amend the Instrument to provide for the
cross-collateralization and cross-default described above.
THEREFORE, BORROWER AND XXXXXX MAE HEREBY AMEND THE INSTRUMENT AS FOLLOWS:
Agreement
1. Cross Collateral; Cross Default. The following new Sections are added to
the Instruments after the last numbered Section:
"47. CROSS-DEFAULT AND CROSS COLLATERALIZATION.
(a) The property described on Exhibit D to this Instrument, together
with the Mortgaged Property, are referred to herein collectively as the
"Chalet Project(s)".
(b) The Borrower acknowledges that the Lender is unwilling to extend
the loan evidenced by the Note and assumed in the Assumption and Release
Agreement of even date herewith, to the Borrower unless Borrower agrees
that each of the Chalet Projects will be treated as a single project
through the imposition of cross-collateralization, cross-default and
release provisions.
(c) The Borrower hereby agrees and consents that as additional
security to the Lender, each of the Chalet Projects shall be subject to the
lien of the Lender's Security Instrument for the other Chalet Project, and
that each of the respective Chalet Projects shall collateralize the other
Chalet Project as follows: all Mortgaged Property (as defined in the
respective Security Instrument) for each of the Chalet Projects shall be
considered part of the "Mortgaged Property" under this Instrument, and
shall be collateral under this Instrument and the Loan Documents.
(d) The Borrower hereby agrees and consents that the occurrence of an
Event of Default under the Security Instrument securing one of the Chalet
Projects, then an Event of Default shall exist under the Security
Instrument with respect to the other Chalet Project. No notice shall be
required to be given to the Borrower in connection with such Event of
Default. In the event of an Event of Default under the Security Instrument
with respect to any one of the Chalet Projects, the Lender shall have the
right, in its sole and absolute discretion, to exercise and perfect any and
all rights in and under the Loan Documents with regard to one or both of
the Chalet Projects, including, but not limited to, an acceleration of one
or both of the Notes and the sale of one or both of the Chalet Projects in
accordance with the terms of the respective Security Instrument. No notice,
except as may be required by the respective Security Instrument, shall be
required to be given to the Borrower in connection with the Lender's
exercise of any and all of its rights after an Event of Default has
occurred.
(e) The Borrower may request that Lender make a determination whether
the Chalet Projects may be released from the cross-default and
cross-collateral provisions of this Section if (i) the Borrower proposes to
pay off an individual loan held by Lender and secured by one of the Chalet
Projects, or (ii) the Borrower proposes to sell one of the Chalet Projects
and have the Borrower's loan on that project assumed by a buyer acceptable
to Lender. Upon such request from Borrower, Lender shall consent to the
release of the Chalet Projects from the cross-default and cross-collateral
provisions of this section.
(f) Notwithstanding any provision of this Section to the contrary, the
Borrower shall not be permitted to request a release of the Chalet Projects
from the cross-default and cross-collateral provisions of this Section if,
at the time of such request, a default or Event of Default under either of
the loans held by Lender on the Chalet Projects. No release of the Chalet
Projects from the cross-default and cross-collateral provisions of this
Section shall be permitted by Lender unless Borrower has paid all costs and
expenses of Lender incurred in connection with its processing of the
requested release, including, without limitation, all title endorsement
premiums, recording fees, inspection fees, and attorney fees."
48. EXHIBIT D. Exhibit D is attached to this Instrument.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, Borrower has executed this Amendment or has caused the
same to be executed by its representatives thereunto duly authorized.
Borrower:
CHALET I ACQUISITION, L.L.C.,
a Kansas limited liability company
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Manager
Lender:
XXXXXX XXX
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Its: Assistant Vice President
ACKNOWLEDGMENTS
STATE OF Missouri )
) ss.
COUNTY OF Clay )
On this day personally appeared before me Xxxx X. Xxxxx, known to me to be
the Manager of Chalet I Acquisition, L.L.C., a Kansas limited liability company,
the limited liability company that executed the foregoing instrument, and
acknowledged to me that such limited liability company executed the same as its
free and voluntary act and deed for the uses and purposes therein mentioned and
on oath stated that he/she was authorized to execute the same on behalf of such
limited liability company.
DATED September 25, 2001.
/s/ Xxxxx X. Xxxxx
NOTARY PUBLIC in and for the state of
Missouri. My commission expires
August 24, 2002.
STATE OF District of Columbia )
) ss.
COUNTY OF _________________________ )
On this day personally appeared before me Xxxxx X. Xxxx, known to me to be
the Assitant Vice President of Xxxxxx Xxx, the corporation that executed the
foregoing instrument, and acknowledged to me that such corporation executed the
same as its free and voluntary act and deed for the uses and purposes therein
mentioned and on oath stated that he/she was authorized to execute the same on
behalf of such corporation.
DATED September 26, 2001.
/s/ Xxxxx X. Prulikowski
NOTARY PUBLIC in and for the state of
District of Columbia. My commission
expires September 30, 2005.
EXHIBIT A TO AMENDMENT
Tract I: Lot 1, EXCEPT the South 20 feet thereof, Prospect Place Subdivision in
the City of Topeka, Shawnee County, Kansas, together with vacated Prospect Court
lying East of and adjacent to said Xxx 0.
Xxxxx XX: Xxx 0, Xxxxx X, Xxxxxxxx Xxxxxxx Subdivision in the City of Topeka,
Shawnee County, Kansas together with vacated Prospect Court lying West of and
adjacent to said Xxx 0.
Xxxxx XXX: Xxx 0, Xxxxx X, Xxxxxxxx Xxxxxxx Xx. 0 in the City of Topeka Shawnee
County, Kansas, EXCEPT a part of said Lot 1; thence on Az 268(0)28'09", 190.00
feet coincident with the South line of said Lot 1; thence on Az 359(0)58'36",
152.00 feet coincident with the West line of said Lot 1; thence on Az
88(0)28'09". 190.00 feet coincident with the South line of said Lot 1; thence on
Az 359(0)58'36". 152.00 feet coincident with the West line of said Lot 1; thence
on Az 88(0)28'09". 190.00 feet to the East line of said Lot 1; thence on Az
179(0)58'36". 152.00 feet coincident with the East line of said Lot 1 to the
point of beginning. ALSO EXCEPT a part of said Lot 1 described as follows:
Beginning at the Northwest corner of said Lot 1; thence East on Az 88(0)20'19".
189.93 feet coincident with the North line of said Lot 1; thence on Az
179(0)58'36". 302.40 feet; thence on Az 269(0)28'09". 287.31 feet to the
Westerly line of said Lot 1; thence on Az 28(0)47'25". 246.07 feet coincident
with said Westerly line; thence on Az 359(0)10'40". 89.50 feet coincident with
said Westerly line to the point of beginning.
PROPERTY ID: 0982704001042010.
EXHIBIT B TO AMENDMENT
EXHIBIT D TO INSTRUMENT
Tract A:
A part of Xxx 0, Xxxxx X, Xxxxxxxx Xxxxxxx Xx. 0, in the city of Topeka, Shawnee
County, Kansas more particularly described as follows: Beginning at the
Southeast corner of said Lot 1; thence on Az 268(0)28'09", 190.00 feet
coincident with the South Line of said Lot 1; thence on Az 359(0)58'36", 152.00
feet coincident with the West line of said Lot 1; thence on Az 88(0)28'09",
190.00 feet to the East line of said Lot 1; thence on Az 179(0)58'36", 152.00
feet coincident with the East Line of said Lot 1 to the point of beginning.
Tract B:
A part of Xxx 0, Xxxxx X, Xxxxxxxx Xxxxxxx No. 2, in the City of Topeka, Shawnee
County, Kansas, more particularly described as follows: Beginning at the
Northwest corner of said Lot 1; thence East on Az 88(0)20'19", 169.93 feet
coincident with the North line of said Lot 1; thence on Az 179(0)58'36", 302.40
feet; thence on Az 269(0)28'09", 287.31 feet to the Westerly line of said Lot 1;
thence on Az 28(0)47'25", 246.07 feet coincident with said Westerly line; thence
on Az 359(0)10'40", 89.50 feet coincident with said Westerly line to the point
of beginning.
Tract C:
Together with those non-exclusive easements rights under that certain Access
Easement Agreement by Chalet Apartments of Topeka, a Kansas Limited Partnership
and granted to Chalet Associates, a Kansas Limited Partnership and American
Savings Association, providing for access, ingress and egress, over, on and
across the East 25 feet of Tract II, recorded in Book 2161, Page 733.
Tract D:
Together with those non-exclusive easement rights under that certain Reciprocal
Cross-Easement and Common Expense Allocation Agreement by and between Chalet
Apartments of Topeka, a Kansas Limited Partnership and Chalet Associates, a
Kansas Limited Partnership, recorded May 2, 1984 in Book 2250, Page 679 and
re-recorded May 8, 1984, in Book 2251, Page 314.
