EXHIBIT 10.59
EIGHTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
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THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is dated as of the 28th day of February, 2002 by and among
CMC HEARTLAND PARTNERS, a Delaware general partnership ("CMC"), and HEARTLAND
PARTNERS, L.P., a Delaware limited partnership ("Heartland"), jointly and
severally (CMC and Heartland are referred to herein from time to time
individually as a "Borrower" and collectively as "Borrowers"); and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association ("Bank").
W I T N E S S E T H:
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WHEREAS, Bank, Borrowers and CMC Heartland Partners, IV, LLC entered into
that certain Amended and Restated Loan and Security Agreement dated as of June
30, 1998, as amended by that certain Amendment to Amended and Restated Loan and
Security Agreement dated as of October 23, 1998, that certain Second Amendment
to Amended and Restated Loan and Security Agreement dated as of April 29, 1999,
that certain Third Amendment to Amended and Restated Loan and Security Agreement
dated as of November 18, 1999, that certain side letter to Amended and Restated
Loan and Security Agreement dated as of October 15, 2000, that certain Fourth
Amendment to Amended and Restated Loan and Security Agreement dated as of March
20, 2000, that certain Fifth Amendment to Amended and Restated Loan and Security
Agreement dated as of December 31, 2000, that certain Sixth Amendment to Amended
and Restated Loan and Security Agreement dated as of December 31, 2001 and that
certain Seventh Amendment to Amended and Restated Loan and Security Agreement
dated as of December 31, 2001 (collectively, the "Agreement"), and Bank and
Borrowers now desire to further amend the Agreement as set forth in this
Amendment.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms and
conditions of this Amendment, the parties, intending to be bound, hereby agree
as follows:
1. Incorporation of the Agreement. All capitalized terms which are not defined
hereunder shall have the same meanings as set forth in the Agreement, and the
Agreement to the extent not inconsistent with this Amendment is incorporated
herein by this reference as though the same were set forth in its entirety. To
the extent any terms and provisions of the Agreement are inconsistent with the
amendments set forth in Paragraph 2 below, such terms and provisions shall be
deemed superseded hereby. Except as specifically set forth herein, the Agreement
shall remain in full force and effect and its provisions shall be binding on the
parties hereto.
2. Amendment of the Agreement. The Agreement is hereby amended as follows:
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(a) Any and all references to the Agreement shall be deemed to refer to and
include this Amendment, as the same may be further amended, modified or
supplemented from time to time.
(b) Any and all references to "Milwaukee Assignments of Rents," "Milwaukee
Mortgage," "Milwaukee Mortgaged Property," "Fife Assignment of Rents," "Fife
Mortgage" and "Fife Mortgaged Property" shall be deemed deleted in their
entirety.
(c) Any and all references to "CMC Heartland Partners IV, LLC, a Delaware
limited liability company" and "Partners" shall be deleted in their entirety and
CMC Heartland Partners, IV, LLC shall be deemed removed as a Borrower under the
Agreement.
(d) The definition of the terms "Revolving Credit Maturity Date" and Revolving
Note in Paragraph 1.1 are hereby amended and restated to read in their entirety
as follows:
"Revolving Credit Maturity Date" means March 31, 2003.
"Revolving Note" means that certain Substitute Revolving Note
dated as of February 28, 2002 made by Borrowers, jointly and
severally, in favor of Bank, in the maximum principal amount
available of Five Million Three Hundred Fifty Thousand Dollars
($5,350,000), as the same may be amended, modified or
supplemented from time to time, together with any renewals
thereof or exchanges or substitutes therefore and as such
amount may be reduced pursuant to Paragraph 2.1 below.
(e) The first sentence of Paragraph 1.2 is hereby amended and restated to read
in its entirety as follows:
Except as otherwise defined in this Agreement or the other
Agreements, all words, terms and/or phrases used herein and
therein shall be defined by the applicable definition
therefore (if any) in the Uniform Commercial Code as in effect
in the State of Illinois on the date of this Agreement
("UCC"), as may be amended or otherwise modified and in effect
from time to time; provided that, if the context so requires,
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in any applicable jurisdiction.
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(f) Paragraph 2.1 is hereby amended and restated to read in its entirety as
follows:
Revolving Credit Commitment. On the terms and subject to the
conditions set forth in this Agreement, Bank agrees to make
revolving credit available and Letters of Credit available to
Borrowers from time to time prior to the Revolving Credit
Termination Date with respect to revolving credit loans and
the Letter of Credit Termination Date with respect to Letters
of Credit, in such aggregate amounts as Borrowers may from
time to time request but in no event exceeding Five Million
Three Hundred Fifty Thousand Dollars ($5,350,000) in the
aggregate (the "Revolving Credit Commitment"); provided,
however, that in no event shall the aggregate amount of
Letters of Credit outstanding at any one time exceed the
Letter of Credit Limit. The Revolving Credit Commitment shall
be available to Borrowers by means of Loans, it being
understood that the Loans may be repaid and used again during
the period from the date hereof to and including the Revolving
Credit Termination Date, at which time the Revolving Credit
Commitment shall expire. Notwithstanding the foregoing, the
Revolving Credit Commitment shall be permanently reduced to
Three Million Eight Hundred Fifty Thousand Dollars
($3,850,000) upon the earlier to occur of (i) the closing of a
real estate loan with respect to the parcel of land owned by a
Borrower (or an Affiliate of Borrowers) located in Fife,
Washington, (ii) the sale of that certain parcel(s) of land
owned by a Borrower (or an Affiliate of Borrowers) located in
Chicago, Illinois having the common addresses of 870 West
Division, 1030 West Division and 1060 West Division and (iii)
June 30, 2002. Upon any reduction of the Revolving Credit
Commitment as set forth above, Borrowers hereby agree to
immediately pay all outstanding amounts of the Revolving
Credit Commitment in excess of Three Million Eight Hundred
Fifty Thousand Dollars ($3,850,000) as of the date of such
reduction. To the extent such amounts are not paid upon the
date of such reduction, it shall constitute an Event of
Default and, in addition to any other remedies available to
Bank, interest on the Loans shall accrue at the Default Rate.
(g) The following new Paragraphs 7.10 and 7.11 are hereby appended to the
Agreement to read in their entirety as follows:
7.10 Organizational Information. Each Borrower's
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state of organization, type of organization and
organizational identification number are as follows:
CMC
State of organization: Delaware
Type of organization: general partnership
Organizational identification number: N/A
Heartland
State of organization: Delaware
Type of organization: limited partnership
Organizational identification number: 2174674
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7.11 Authorization. Each Borrower hereby irrevocably
authorizes the Bank at any time, and from time to time, to
file in any jurisdiction any initial UCC financing statements
and amendments thereto that (A) indicate the Collateral (y) as
all assets of such Borrower or words of similar effect,
regardless of whether any particular asset comprised in the
Collateral falls within the scope of Article 9 of the UCC of
the jurisdiction wherein such financing statement or amendment
is filed, or (z) as being of an equal or lesser scope or
within greater detail, and (B) contain any other information
required by Part 5 of Article 9 of the UCC of the jurisdiction
wherein such financing statement or amendment is filed
regarding the sufficiency or filing office acceptance of any
financing statement or amendment, including (y) the type of
organization and the organizational identification number
issued to such Borrower and (z) in the case of a financing
statement filed as a fixture filing or indicating Collateral
to be extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates.
Each Borrower further ratifies and affirms its authorization
for any financing statements and/or amendments thereto, filed
by the Bank in any jurisdiction prior to the date of this
Agreement.
3. Closing Documents. All the documents on Exhibit A hereto shall be
delivered concurrently with this Amendment, each in form and substance
satisfactory to Bank.
4. Representations and Warranties; No Event of Default; Schedules. The
representations and warranties set forth in Paragraph 8.1 of the Agreement are
deemed remade as of the date hereof and each Borrower represents that such
representations and warranties are true and correct as of the date hereof. No
Event of Default exists nor does there exist any event or condition which with
notice, lapse of time and/or the consummation of the transactions contemplated
hereby would constitute an Event of Default. 5. Commitment Fee. As a condition
of Bank's agreement to enter into this Amendment, Borrowers hereby agree to pay
to Bank a renewal fee equal to Twenty-Six Thousand Seven Hundred Fifty Dollars
($26,750) which shall be due and payable as of the date of this Amendment.
6. Fees and Expenses. The Borrowers agree to pay on demand all costs and
expenses of or incurred by Bank in connection with the evaluation, negotiation,
preparation, execution and delivery of this Amendment and the other instruments
and documents executed and delivered in connection with the transactions
described herein (including the filing or recording thereof), including, but not
limited to, the fees and expenses of counsel for the Bank and any future
amendments to the Agreement.
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7. Effectuation. The amendments to the Agreement contemplated by this
Amendment shall be deemed effective immediately upon the full execution of
this Amendment and without any further action required by the parties
hereto. There are no conditions precedent or subsequent to the effectiveness
of this Amendment.
8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
[Signature Page Follows]
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Eighth Amendment to Amended and Restated Loan
and Security Agreement Signature Page
IN WITNESS WHEREOF, the parties hereto have duly executed this Eighth
Amendment to Amended and Restated Loan and Security Agreement as of the date
first above written.
CMC HEARTLAND PARTNERS, a Delaware
general partnership
By: HTI INTERESTS, LLC, a Delaware
limited liability company and an
authorized general partner
By:__________________________________
Its:_________________________________
By: HEARTLAND PARTNERS, L.P., a
Delaware limited partnership and an
authorized general partner
By: HTI Interests, LLC
Its: General Partner
By:______________________________
Its:_____________________________
HEARTLAND PARTNERS, L.P., a Delaware
limited partnership
By: HTI Interests, LLC
Its: General Partner
By:______________________________
Its:_____________________________
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:_______________________________
Its:______________________________
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EXHIBIT A
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Amendment Documents
1. Eighth Amendment to Amended and Restated Loan and Security Agreement
(the "Amendment");
2. Substitute Revolving Note;
3. Mortgage and UCC-2 release for each of the following: (i) Milwaukee,
Wisconsin property; and (ii) Fife, Washington property;
4. Secretary's Certificate of HTI Interests, LLC certifying to and
attaching resolutions of each Borrower approving the Amendment; and
5. Incumbency Certificate with respect to each Borrower.
A-1
