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Home My WebLink About902956902956 RECEIVED LINCOLN OOUNTY OLERK Space for Recorder's Use FIRST MODIFICATION OF MORTGAGE This First Modification of Mortgage (the "Agreement") is made and entered into this 3ra day of September, 2004, by MID PLAINS PIZZA, INC., a Kansas corporation, whose address is P.O. Box 2438, Seven West Parkway Blvd., Liberal, Kansas 67905 (the "Grantor") and BANK OF AMERICA, N.A., a national banking association, whose address is CCS- Commercial Banking, MO1-800-07-05, 100 North Broadway, St. Louis, Missouri 63101 (the "Grantee" or "Beneficiary"). RECITALS A. Grantor has previously executed and delivered to Beneficiary a Mortgage, Assignment of Rents and Leases and Security Agreement dated October 16, 2003, which was filed for record on December 4, 2003 in the Office of the County Clerk of Lincoln County, Wyoming, as Document No. 895697, Book 54,~_Z,~age 153 (the "Mortgage"), which Mortgage encumbers certain real property located in Lincoln County, Wyoming more specifically described in the attached Exhibit A hereto (the "Property"). B. The Grantor acknowledges (i) the Beneficiary is presently the holder of the Mortgage and each of the other documents secured by or related to the Mortgage, (ii) it is the present fee simple owner of the Property, and (iii) its obligation to maintain, perform and comply with theterrns and conditions of the Mortgage. C. Colvin Properties, L.L.C., a Kansas limited liability company ("Colvin"), Grantor and High Plains Pizza, Inc., a Kansas corporation ("High Plains") and Beneficiary entered into an Amended and Restated Loan Agreement, of even date herewith (the "Loan Agreement") pursuant to which the Beneficiary agreed to make various loans to Colvin or Grantor evidenced by certain documents, including (i) an Amended and Restated Promissory Note of even date herewith issued by Grantor and payable to Beneficiary in the original principal amount of $1,750,000.00, (ii) an Amended and Restated Promissory Note of even date herewith issued by Gramor and payable to Beneficiary in the principal amount of $1,669,791.63, (,iii) a Promissory Note of even date herewith issued by Grantor and payable to Beneficiary in the principal amount of $1,500,000.00, (iv) a Second Amended and Restated Promissory Note ol' even date herewith issued by Grantor and payable to Beneficiary in the principal amount of $2,949,659.92, and (v) an Amended and Restated Promissory Note of even date herewith issued by Colvin and payable to Beneficiary in #242, Aflon, Lincoln Co., WY 10/16/03 0657 the principal amount of $2,450,000.00, as each may from time to time be amended, modified, replaced or supplemented (collectively, the "Notes"). D. Colvin's obligation of repayment" of the Notes is guaranteed by that certain Amended and Restated Guaranty Agreement of even date herewith executed by the Grantor for the benefit of Beneficiary (the "Guaranty"). E. Grantor and Beneficiary enter into this Agreement for the purpose of modifying the Mortgage in order that it also secures the Loan Agreement, the Notes and the. Indebtedness (as defined in the Guaranty) of the Grantor under the Guaranty. NOW THEREFORE, Grantor and Beneficiary for good, sufficient and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: 1. Modification of the Mortgage. The Mortgage is hereby modified to delete the paragraph under Section 1.2 regarding the definition of "Promissory Note" and the following is inserted in lieu thereof: "Promissory Note": Collectively, all notes now or hereafter executed pursuant to the Amended and Restated Loan Agreement, betxveen Borrower, Colvin Properties, L.L.C. ("Colvin"), High Plains Pizza, Inc. and Lender, including without limitation (i) an Amended and Restated Promissory Note of even date herewith issued by Borrower and payable to Lender in the original principal amount of $1,750,000.00, (ii) an Amended and Restated Promissory Note of even date herewith issued by Borrower and payable to Lender in the principal amount of $1,669,791.63, (iii) a Promissory Note of even date herewith issued by Borrower and payable to Lender in the principal amount of $1,500,000.00, (iv) a Second Amended and Restated Promissory Note of even date herewith issued by Borrower and payable to Lender in the principal amount of $2,949,659.92, and (v) an Amended and Restated Promissory Note of even date herewith issued by Colvin and payable to Lender in the principal amount of $2,450,000.00, as each may from time to time be amended, modified, replaced or supplemented, and all other notes which may be issued in the future by Colvin, Borrower and/or High Plains Pizza, Inc. and payable to Lender. 2. Conditions Precedent. It shall be a condition precedent to the effectiveness of this Agreement that (i) if requested by Beneficiary, the Grantor shall have delivered evidence of its authority to enter into this Agreement as well as the capacity of the individual executing this Agreement, (ii) no event of default under the Mortgage shall exist, (iii) the Notes and Loan Agreement shall be fully executed by the parties, and (ix,) Grantor shall have paid all costs and expenses associated with this Agreement including, without limitation, recording fees, title company charges, and Beneficiary's attorneys fees. 3. No Other Modifications. Except as expressly set forth herein, or necessary to incorporate the modifications herein, all the terms and conditions of the Mortgage shall remain unmodified and in full force and effect, and Grantor confirms and ratifies the Mortgage and 0658 agrees to perform and comply with the terms and the conditions of the Mortgage, as modified herein. 4. No Impairment. Nothing in this Agreement shall be deemed to or shall in any manner prejudice or impair the lien and encumbrance of the Mortgage or the terms and conditions of or any rights, powers, or remedies of the Beneficiary under the Mortgage. 5. Applicable Law. This Agreement shall be governed by and constrned in accordance with the internal laws of the State of Kansas, without regard to choice or conflict of laws rules, provided, however, that to the extent the law of the jurisdiction where the Property is located requires the application of its own state law or procedure to the foreclosure of the Mortgage, or to any other aspect of the Mortgage or this Agreement, then the parties agree that state's law and procedure law shall apply to all such matters. 6. Incorporation of Terms. This Agreement is subject to the terms and provisions of the Loan Agreement with respect to waiver of trial by jury and mandatory arbitration. 1N WITNESS WHEREOF, Grantor and Beneficiary have executed this Agreement as of the day and year first above written. MID PLAI~S PIZZA, INC., a Kansas co~. W. Kent Colvin Vice President of Operations Vice President of Finance BANK OF AMERICA, N. A., a national banking association By: Andrea Ander~q~'X3carlSelli Vice President STATE OF KANSAS ) F~~_,)ss: COUNTY O ) This instrument was acknowledged before me on September .~i 2004, by W. Kent Colvin as the Vice President of Operations of Mid Plains Pizza, Inc., a Kansas corporation. Print Name: ~¢"q.~d.O~ ~ , ~C~ ,o. ar£ Notary Public My Commission Expires: [, STATE OF KANSAS ) ) SS: COUNTY OFFS' d. ) This instrument was acknowledged before me on September __02, 2004, by Amy Hinkle as the Vice President of Finance of Mid Plains Pizza, Inc., a Kansas corporation. PrintName: r'~cev-.ck c~5. '[~.(3q-O,~ Notary Public My Commission Expires: STATE OF KANSAS ) COUNTY O 'F(~~ ss: This instrument was acknowledged before me on September __., 2004, by Andrea Andersen Scarpelli as the Vice President of Bank of America, N.A., a national banking association. Print Name: O//'~Z/~.. ~'kg./y/OCJ-C Notary Public My Commission Expires: Notary Public- St?te of,Kansas I My Appt. Exp.~ 06GO EXHIBIT A DESCRIPTION OF THE PROPERTY All that parcel or parcels of real property located in Lincoln County, Wyoming, and more particularly described as follows: That part of Lot 1 of Block 18 of the Original Townsite of Afton, within the NE1/4SE1/4 of Section 25, T32N, R119W, being part of that tract of record in the Office of the Clerk of Lincoln County in Book 188 of Photostatic Records on Page 249, described as follows: Beginning at a point on the East line of Lot 1 of said Block 18, S 14°47. I'W, 222.45 feet from an I.L.C. RLS274 mueller water cap with brass hexagon bolt at the approximate intersection of the center-lines of Third Avenue and Washington Street; thence S01°07.0'W, 165.00 feet along the East line of said Lot 1 to the Southeast point of said Lot 1; thence N 88°08. I'W, 80.00 feet along the South line of said Lot 1 identical with the North line of that tract of record in said Office in Book 67 of Photostatic Records on Page 485 to a point; thence N01°07.0'E, 165.00 feet parallel to said East line to a point on the North line of said tract of record in Book 188 identical with the South line of said tract of record in Book 213 of Photostatic Records on Page 352; thence S88°08. i'E, 80.00 feet along said identical line to the point of begimfing. CCMDOCS 727274v2 5