Exhibit 10.61
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FOR RECORDER'S USE ONLY
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FOURTH AMENDMENT OF CONSTRUCTION
LOAN AGREEMENT, MORTGAGE, NOTES AND OTHER LOAN DOCUMENTS
THIS FOURTH AMENDMENT OF CONSTRUCTION LOAN AGREEMENT, MORTGAGE, NOTES AND
OTHER LOAN DOCUMENTS (this "Amendment") is made as of June 23, 2002, by and
between CMC HEARTLAND PARTNERS III, LLC, a Delaware limited liability company
("Borrower") and BANK ONE, ILLINOIS, N.A., a national banking association
("Lender").
RECITALS:
A. Pursuant to that certain Construction Loan Agreement dated as of October 20,
1999, as amended by (i) that certain First Amendment of Construction Loan
Agreement, Notes and Other Loan Documents dated as of January __, 2000 (the
"First Amendment") by and between Borrower and Lender, (ii) that certain Second
Amendment of Construction Loan Agreement, Mortgage, Notes and Other Loan
Documents dated as of February 23, 2001 (the "Second Amendment") by and between
Borrower and Lender, and (iii) that certain Modification Agreement dated as of
February 23, 2002 (the "Third Amendment") by and between Borrower and Lender (as
amended, restated, modified or supplemented from time to time and in effect,
collectively, the "Loan Agreement"), Lender agreed to make a construction loan
to Borrower (the "Construction Loan"), make available a Letter of Credit in the
amount of $3,000,000 and extend a land loan to Borrower in the original
principal amount of $3,000,000 (the "Land Loan"). All capitalized terms used
herein and not otherwise defined shall have the meaning ascribed thereto in the
Loan Agreement.
_____________________________________________________________________________
This instrument was prepared by and, Permanent Real Estate Tax Index Nos.
after recording, return to:
Parcel 9 - 17-09-300-005
Parcel 10 -17-09-301-004
Schwartz, Cooper, Xxxxxxxxxxx Parcel 11 - 17-09-302-008-1001, 1301,
& Xxxxxx Chartered 1303 and 1306
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
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B. The Construction Loan has been repaid in full and the Letter of Credit has
been returned to Lender. The Land Loan remains outstanding.
C. The Land Loan is evidenced by the Land Loan Mortgage Note in the original
principal amount of $3,000,000 (the "Land Loan Mortgage Note"). All references
to the Notes herein or the other Loan Documents shall be deemed to mean the Land
Loan Mortgage Note and any amendments, extensions, modifications or other
supplements thereto.
D. The Notes are secured by, among other things, the following documents, all of
which are dated as of October 20, 1999, and all of which were amended by the
First Amendment, the Second Amendment and the Third Amendment:
(i) Mortgage made by Borrower in favor of Lender and recorded in the Real
Estate Records of Xxxx County, Illinois (the "Recorder") on October 21,
1999, as Document No. 99992384 (the "Mortgage") creating a first mortgage
lien on certain real estate located in Chicago, Illinois, and legally
described in Exhibit A attached thereto;
(ii) Assignment of Rents and Leases made by Borrower in favor of Lender
and recorded in the office of the Recorder on October 21, 1999, as
Document No. 99992618 (the "Assignment of Rents");
(iii) Security Agreement made by the Borrower, as Debtor, to Lender, as
Secured Party; and
(iv) Environmental Indemnity Agreement made by the Borrower for the benefit
of Lender.
The Notes are also secured by that certain Mortgage, Assignment of Rents,
Security Agreement and Fixture filing dated as of February 23, 2002 made by
Borrower in favor of Lender and recorded in the office of the Recorder on May
23, 2002, as Document No. 002059036. The aforementioned documents, the Loan
Agreement, the Notes and all of the other documents or agreements delivered to
Lender to secure or evidence the Loans or to otherwise induce Lender to disburse
the proceeds of the Construction Loan, the Land Loan and issue the Letter of
Credit are hereinafter referred to collectively as the "Loan Documents".
E. Borrower has requested that Lender extend the Maturity Date.
F. Lender is willing to extend the Maturity Date, notwithstanding the fact that
Lender has no obligation to do so, subject to and upon the terms and conditions
set forth below in this Amendment.
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NOW, THEREFORE, in order to induce Lender to agree to the foregoing, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower and Lender hereby agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are incorporated
herein and made a part hereof.
2. Maturity Date. The maturity date of the Land Loan shall be December 31,
2002, and all references to the "Maturity Date" in the Loan Documents shall be
deemed to be December 31, 2002. Borrower shall have no right to further extend
the Maturity Date.
3. Land Loan Balance. The Borrower hereby acknowledges and agrees that
as of the date hereof, the outstanding principal balance of the Land Loan is
$1,089,018.00.
4. Repayment of the Land Loan. Payments of principal and interest due under the
Land Loan and evidenced by the Land Loan Mortgage Note, if not sooner declared
to be due in accordance with the provisions hereof, shall be made as follows:
(a) On the first Business Day of each month through and including the
month in which the Maturity Date occurs, accrued and unpaid interest
only on the unpaid principal balance of the Land Loan shall be due
and payable;
(b) On June 30, 2002, Borrower shall make a principal payment to
Lender in an amount equal to $89,018;
(c) On September 30, 2002, Borrower shall make a principal payment to
Lender in an amount equal to $500,000; and
(d) The principal balance of the Land Loan, if not sooner declared to
be due in accordance with the terms hereof or the Loan Agreement,
together with all accrued and unpaid interest thereon, shall be due and
payable in full on the Maturity Date.
5. Required Deliveries. This Amendment shall become effective on the date
(the "Amendment Effective Date") on which all of the following conditions have
been satisfied:
(a) This Amendment has been duly executed by Borrower and delivered to
Lender;
(b) Lender receives payment of an extension fee equal to $5,445;
(c) Lender receives an additional endorsement to First American Title
Insurance Company Loan Policy No. N9901868 issued by Near North National
Title Corporation (the "Title Policy") which (i) amends the description
of the Mortgage insured under the Title Policy to include this Amendment,
(ii) amends the description of the Assignment of Rents to include this
Amendment, (iii) extends the effective date of the Title Policy to the
date of the recording of this Amendment, (iv) includes no additional
exceptions to title other than those that have been approved in writing
by Lender, and (v) states that all real estate taxes and assessments
applicable to the Property which are due and payable as of the date of
such endorsement have been paid in full; and
(d) Lender has received such other documents as Lender may reasonably
require.
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6. References. All references to the Loan Agreement, the Notes, the
Mortgage and the other Loan Documents contained in any of the Loan Documents
shall be deemed to refer to each of such documents as amended by this Amendment.
7. Additional Loan Expenses. Borrower hereby agrees to pay all of Lender's
reasonable attorneys' fees incurred in connection with the negotiation and
documentation of the agreements contained in this Amendment, all recording fees
and charges, title insurance charges and premiums and all other expenses,
charges, costs and fees referred to in, necessitated by or otherwise relating to
this Amendment (collectively, the "Additional Loan Expenses"). If the Additional
Loan Expenses are not paid to Lender within five days after written demand
therefor by Lender, the Additional Loan Expenses shall bear interest from the
date so incurred until paid at an annual rate equal to the Default Rate.
8. Defaults. Borrower represents and warrants that, as of the date hereof, no
Event of Default or event or condition which could become an Event of Default
with the giving of notice or passage of time, or both, exists under the Loan
Agreement or any of the other Loan Documents. Borrower further acknowledges and
agrees that an Event of Default under the Loan Agreement, the Land Loan Mortgage
Note and the other Loan Documents shall be deemed to exist upon the occurrence
of a breach of any of the representations, warranties or covenants set forth in
this Amendment.
9. No Defenses. Borrower represents and warrants there is not any condition,
event or circumstance existing, or any litigation, arbitration, governmental or
administrative proceedings, actions, examinations, claims or demands pending or
threatened affecting Borrower, Heartland Partners or the Property, or which
would prevent the Borrower or Heartland Partners from complying with or
performing its respective obligations under the Loan Agreement, the Land Loan
Mortgage Note, the Mortgage or the other Loan Documents, and no basis for any
such matter exists.
10. Authority to Execute Amendment; No Conflict. Borrower represents and
warrants that it has full power and authority to execute and deliver this
Amendment and to perform its obligations hereunder. Upon the execution and
delivery hereof, this Amendment will be valid, binding and enforceable upon
Borrower in accordance with its terms. Execution and delivery of this Amendment
does not and will not contravene, conflict with, violate or constitute a default
under any applicable law, rule, regulation, judgment, decree or order or any
agreement, indenture or instrument to which Borrower is a party or is bound.
11. Amendment Binding. This Amendment shall be binding on the Borrower and its
successors and permitted assigns, and shall inure to the benefit of Lender and
its successors and assigns.
12. Continued Effectiveness. Except as expressly provided herein, the Loan
Agreement and the other Loan Documents shall remain in full force and effect
in accordance with their respective terms.
13. Counterparts. This Amendment may be executed in counterparts, and
all said counterparts when taken together shall constitute one and the same
Amendment.
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IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first above written.
CMC HEARTLAND PARTNERS III, LLC, a BANK ONE, ILLINOIS, NA, a national
limited liability company Delaware banking association
By: CMC Heartland Partners, a Delaware By: ______________________________
general partnership, the sole Xxxxxx X. Xxxxxxx,
member of Borrower. Vice President
By: HTI Interests, LLC, a Delaware
limited liability company as its
managing partner
By: ______________________________
Title: ___________________________
Attest: __________________________
Title: ___________________________
GUARANTOR CONSENT
Heartland Partners, L.P. hereby consents to the execution of this
Amendment and acknowledges that certain Guaranty dated as of February 23, 2001
shall remain in full force and effect for the full amount of the Borrower's
Obligations (as defined therein).
HEARTLAND PARTNERS, L.P.
By: HTI Interests, LLC, a
Delaware limited liability
company as its managing partner
By: ______________________
Title:_____________________
Attest: ____________________
Title: _____________________
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STATE OF )
) SS
COUNTY OF )
I, _______________________, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Xxxxxx X. Xxxxxxx is personally known to
me to be the same person whose name is subscribed to the foregoing instrument as
such Vice President, of Bank One, Illinois, NA, a national banking association
(the "Bank"), appeared before me this day in person and severally acknowledged
that he signed and delivered the said instrument as his own free and voluntary
act, and as the free and voluntary act of the Bank for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal this ____ day of _________, 2002.
_____________________________
NOTARY PUBLIC
STATE OF )
) SS
COUNTY OF )
I, , a Notary Public in and for said County, in the State aforesaid, do
hereby certify that ________________ and __________________ of HTI Interests
LLC, who are personally known to me to be the same persons whose name are
subscribed to the foregoing instrument as such officers appeared before me this
day in person and acknowledged that they signed and delivered the said
instrument as their own free and voluntary act and as the free and voluntary act
of HTI Interests LLC, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal, this ____ day of ________, 2002.
_____________________________
NOTARY PUBLIC
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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