Exhibit 10.20
CONSTRUCTION LOAN AGREEMENT
BETWEEN
CMC HEARTLAND PARTNERS III, LLC,
a Delaware limited liability company, as Borrower
AND
BANK ONE, ILLINOIS, NA,
a national banking association, as Lender
TABLE OF CONTENTS
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Section Page No.
1. RECITALS.............................................................1
2. DEFINITIONS..........................................................1
3. COMMITMENT TO LEND; COMMITMENT FEE...................................8
3.1 Maximum Construction Loan Amount............................8
3.2 Loan Advances Evidenced by Mortgage Note....................8
3.3 Payment of Interest and Principal...........................8
3.4 Default Rate................................................9
3.5 Late Charge.................................................9
3.6 Fees........................................................9
3.7 Letter of Credit; Letter of Credit Fees and Cash Collateral.9
4. LOAN DOCUMENTS......................................................10
5. DISBURSEMENT OF THE LOAN............................................15
5.1 Conditions Precedent.......................................15
5.2 Use of Construction Loan Proceeds; Inspections of the Work.15
5.3 Disbursement Requests......................................16
5.4 Certifications, Representations and Warranties.............17
5.5 Amount of Disbursements; Retainage.........................18
5.6 Costs......................................................18
5.7 Reserves...................................................18
5.8 Loan In Balance............................................19
5.9 Escrow; Application of Disbursements.......................20
5.10 Release of Retainage.......................................20
6. REPRESENTATIONS AND WARRANTIES......................................22
6.1 Borrower...................................................22
6.2 Member.....................................................22
6.3 Heartland..................................................22
6.4 Title......................................................23
6.5 Improvements...............................................23
6.6 Validity and Enforceability of Documents...................23
6.7 Litigation.................................................23
6.8 Utilities; Authorities.....................................23
6.9 Solvency...................................................24
6.10 Financial Statements.......................................24
6.11 Compliance with Laws.......................................24
6.12 Construction Contract......................................24
6.13 Subcontracts...............................................25
6.14 Architectural Contract.....................................25
6.15 Plans and Specifications...................................25
6.16 Budget.....................................................25
6.17 Financing Statements.......................................25
6.18 Event of Default...........................................25
6.19 Responsible Property Transfer Act..........................25
6.20 Federal Interstate Land Sales Full Disclosure Act;
Illinois Land Sales Registration Act of 1989...............25
6.21 Additional Agreements......................................25
7. BORROWER'S COVENANTS................................................26
7.1 Manner of Construction.....................................26
7.2 Certificate of Completion..................................26
7.3 Change Orders..............................................26
7.4 Compliance with Laws.......................................27
7.5 Inspection.................................................27
7.6 Mechanics' Liens...........................................27
7.7 Release by Lender..........................................28
7.8 Financial Statements; Reports..............................28
7.9 Affirmation of Representations and Warranties..............29
7.10 Title......................................................29
7.11 Proceedings Affecting Property.............................29
7.12 Disposal and Encumbrance of Property.......................29
7.13 Insurance..................................................30
7.14 Performance of Obligations; Notice of Default..............30
7.15 Subcontracts...............................................30
7.16 Restrictions Affecting Borrower............................30
7.17 Use of Receipts............................................30
7.18 Budget.....................................................31
7.19 Management and Leasing Agreements; Subordination...........31
7.20 Additional Documents.......................................31
7.21 Sale to Investors..........................................31
7.23 Survey.....................................................32
7.24 Borrower's Accounts........................................32
7.25 Ineligible Securities......................................32
8. LOAN EXPENSES.......................................................32
9. LENDER'S REPRESENTATIVES............................................33
10. EVENTS OF DEFAULT...................................................33
11. REMEDIES...........................................................35
12. SALES OF UNIT INTERESTS; PARTIAL RELEASES...........................36
12.1 Right to Sell..............................................36
12.2 Release of Liens...........................................36
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13. MISCELLANEOUS.......................................................37
13.1 Additional Indebtedness....................................37
13.2 Additional Acts............................................37
13.3 Loan Agreement Governs.....................................37
13.4 Additional Advances........................................37
13.5 Amendment; Waiver; Approval................................37
13.6 Notice.....................................................38
13.7 Benefit; Assignment........................................38
13.8 Governing Law..............................................39
13.9 Indemnity..................................................39
13.10 Headings...................................................39
13.11 No Partnership or Joint Venture............................39
13.12 Time is of the Essence.....................................39
13.13 Invalid Provisions.........................................39
13.14 Offset.....................................................40
13.15 Acts by Lender.............................................40
13.16 Binding Provisions.........................................40
13.17 Counterparts...............................................40
13.18 No Third Party Beneficiary.................................40
13.19 Publicity..................................................40
13.20 JURISDICTION AND VENUE.....................................40
13.21 JURY WAIVER................................................41
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CONSTRUCTION LOAN AGREEMENT
This Construction Loan Agreement ("Agreement") is dated as of October
20, 1999, by and between CMC HEARTLAND PARTNERS III, LLC, a Delaware limited
liability company ("Borrower"), and BANK ONE, ILLINOIS, NA, a national banking
association ("Lender").
1. RECITALS.
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1.1 Borrower is the fee owner of the Land (this and all other
capitalized terms used in this Article 1 and not otherwise defined
shall have the meanings ascribed thereto in Article 2 below).
1.2 Borrower has requested that Lender make a construction
loan (the "Construction Loan") to Borrower in the maximum principal
amount of $5,250,000 to pay a portion of the amounts needed to finance
the Project Costs associated with the construction of a midrise
building containing 24 residential condominium units and underground
parking on the Land. Lender has agreed to make the Construction Loan
subject to the terms and conditions set forth herein.
1.3 In consideration of the mutual agreements set forth herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree
as follows:
2. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
2.1 "Acceptable Unit Sale Contract" shall mean a binding,
unconditional sale contract for a Unit Interest (with any financing and
other contingencies having been satisfied or expired) (i) with a third
party unrelated to and unaffiliated with Borrower, (ii) with xxxxxxx
money paid in cash in an amount not less than 10% of the purchase price
of the Unit Interest, (iii) on a form of contract approved in writing
by Lender (with only such changes thereto as may be requested by the
purchaser and agreed to by Borrower exercising commercially reasonable
judgment), and (iv) for a gross sales price of not less than the
minimum sales price therefor contained in Exhibit E attached hereto.
2.2 "Applicable Laws" shall mean all laws, statutes,
ordinances, rules, regulations, judgments, decrees or orders of any
state, federal or local government or agency which are applicable to
the Obligors and/or the Project.
2.3 "Architect" shall mean Xxxxxxxxxxx/Xxxxxx, Ltd.
2.4 "Architectural Contract" shall mean that certain contract
dated December 9, 1997, between Borrower and the Architect regarding
the architectural services to be performed by the Architect in
connection with the construction of the Improvements.
2.5 "Assignment of Developer Rights" shall mean the assignment
from Borrower to Lender to secure the Loans of all of Borrower's rights
as the developer/declarant under the Condominium Documents.
2.6 "Assignment of Plans" shall mean the collateral assignment
of all licenses, permits, plans, specifications and contracts relating
to the construction, use or operation of the Project to be made by
Borrower to Lender to secure the Loans.
2.7 "Assignment of Rents and Leases" shall mean the collateral
assignment of the rents and leases of the Project, or any part thereof,
to be made by Borrower to Lender to secure the Loans.
2.8 "Assignment of Sales Contracts" shall mean the assignment
of all sales contracts with respect to any Unit Interests to be made by
Borrower to Lender to secure the Loans.
2.9 "Budget" shall mean the detailed budget of all costs to be
incurred in connection with the Work, including both hard costs and
soft costs, as set forth in Exhibit A attached hereto and made a part
hereof.
2.10 "Building" shall mean the midrise building with 24
residential condominium units and 32 underground parking stalls to be
constructed on the Land.
2.11 "Business Day" shall mean each day excluding Saturdays,
Sundays and any other day on which Lender is closed for business to the
public.
2.12 "Closing Date" shall mean the date of this Agreement.
2.13 "Condominium Laws" shall mean, collectively, the Illinois
Condominium Property Act, the City of Chicago Condominium Ordinance and
all other laws, rules, regulations and governmental actions governing
the development, conversion, ownership or operation of condominium
projects such as the Project, as amended from time to time.
2.14 "Condominium Documents" shall mean the condominium
declarations, the plats of condominium, the association articles of
incorporation, by-laws and rules and regulations, the City of Chicago
property report and all other documents and instruments governing the
ownership, operation or administration of the Project as an integrated
condominium project.
2.15 "Construction Contract" shall mean that certain contract
dated September 7, 1999, between Borrower and the Contractor regarding
the general contracting and construction management services to be
performed in connection with the construction of the Improvements.
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2.16 "Consultant" shall mean an independent architect or
engineer selected by Lender.
2.17 "Contractor" shall mean Xxxx-Xxxxxx, Inc.
2.18 "Demand Note" shall mean that certain Demand Note of even
date herewith made by Borrower in the amount of $3,000,000 evidencing
all draws hereafter made on the Letter of Credit.
2.19 "Default Rate" shall mean the Loan Rate plus three
percent (3.0%) per annum.
2.20 "Event of Default" shall have the meaning ascribed to it
in Section 10 of this Agreement.
2.21 "Hazardous Materials" shall mean and include any and all
hazardous, toxic or dangerous substances, wastes and materials and
other pollutants and contaminants as defined or described in any or all
applicable federal, state or local statutes, laws, ordinances, codes,
rules, regulations, orders or decrees now or hereafter regulating,
relating to or imposing liability or standards of conduct with respect
to environmental matters, including, without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act
of 1986 (42 U.S.C. Section 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976, as amended by the Solid and Hazardous Waste Amendments of 1984
(42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977 and the Water Quality
Act of 1987 (33 U.S.C. Section 1251 et seq.), the Toxic Substances
Control Act of 1976 (15 U.S.C. Section 2601 et seq.), the Emergency
Planning and Community Right-to-Know Act of 1986 (42 U.S.C. Section
11001 et seq.), the Clear Air Act of 1966, as amended (42 U.S.C.
Section 7401 et seq.), the National Environmental Policy Act of 1970
(42 U.S.C. Section 4321 et seq.), the Rivers and Harbours Act of 1899
(33 U.S.C. Section 401 et seq.), the Endangered Species Act of 1973, as
amended (16 U.S.C. Section 1531 et seq.), the Safe Drinking Water Act
of 1974, as amended (42 U.S.C. Section 300(f) et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
Section 651 et seq.) and the Illinois Environmental Protection Act of
1970, as amended (Ill.Rev.Stat. ch.111-1/2, Paragraph 1001 et seq.) and
all rules, regulations and guidance documents promulgated or published
thereunder, all as amended or hereinafter amended. Without intending
to limit the scope or breadth of the foregoing definition, the term
Hazardous Materials shall include asbestos, urea formaldehyde,
polychlorinated biphenyls, crude oil, radioactive materials and
underground storage tanks.
2.22 "Heartland" shall mean Heartland Technology, Inc., a
Delaware corporation.
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2.23 "Improvements" shall mean the Building and all other
structures, all paving, lighting, landscaping, utility lines and
equipment and all other site improvements and all other improvements to
be constructed on the Land in accordance with the Plans and
Specifications.
2.24 "Indemnity Agreement" shall mean the environmental
indemnity agreement to be made by Borrower in favor of Lender.
2.25 "Initial Advance" shall mean the first draw or
disbursement made from the proceeds of the Construction Loan.
2.26 "Land" shall mean the tract of land located in Chicago,
Xxxx County, Illinois and legally described in Exhibit B attached
hereto.
2.27 "Letter of Credit" shall mean that certain irrevocable
standby letter of credit (no. StI14057) established by Lender at the
request of Borrower with Corus Bank as the beneficiary in the amount of
$3,000,000, pursuant to the terms of the Letter of Credit Agreement.
2.28 "Letter of Credit Agreement" shall mean that certain Bank
One Application and Agreement for Irrevocable Standby Letter of Credit
dated as of July 31, 1999.
2.29 "Letter of Credit Liability" means, at any time, the sum
of (i) the aggregate amount then available to be drawn or that may
thereafter be drawn under the Letter of Credit, and (ii) all amounts
that have theretofore been drawn on the Letter of Credit and that have
not been reimbursed or repaid to Lender.
2.30 "Loans" shall mean (i) the Construction Loan, and (ii)
any amounts that have been drawn on the Letter of Credit and that have
not been reimbursed or repaid to Lender.
2.31 "Loan Advance" shall mean a disbursement of all or any
portion of the Construction Loan.
2.32 "Loan Documents" shall mean this Agreement, the Mortgage,
the Notes, the Assignment of Leases and Rents, the Assignment of Plans,
the Assignment of Sales Contracts, Assignment of Developer Rights, the
Security Agreement, the Indemnity Agreement, the Letter of Credit
Agreement, and every other document now or hereafter evidencing,
securing or otherwise executed in conjunction with the Loans, together
with all amendments and modifications thereof.
2.33 "Loan Expenses" shall mean the expenses, charges, costs
(including both hard costs and soft costs) and fees relating to the
making, administration, negotiation, documentation or any other aspect
of the Loans or relating to the performance of the
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Work, including, without limitation, Lender's reasonable attorneys'
fees and costs in connection with the negotiation, documentation and
enforcement of the Loans, the fees of the Consultant, all recording
fees and charges, title insurance charges and premiums, escrow fees,
fees of insurance consultants, costs of surveys and of other bonds
required by the Title Company in connection with clearing title to the
Real Property or the issuance of title reports, binders, policies and
the like, and all other costs, expenses, charges and fees referred to
in or necessitated by the terms of this Agreement or any of the other
Loan Documents.
2.34 "Loan Rate" shall mean the Prime Rate.
2.35 "Maturity Date" shall mean October 20, 2002.
2.36 "Member" shall mean CMC Heartland Partners, a Delaware
general partnership, Borrower's sole member.
2.37 "Mortgage" shall mean the construction mortgage
encumbering the Real Property to be made by Borrower to Lender to
secure the Loans.
2.38 "Mortgage Note" shall mean the Mortgage Note evidencing
the Construction Loan to be made by Borrower payable to the order of
Lender in the original principal amount of $5,250,000.
2.39 "Net Sales Proceeds" shall mean, with respect to the sale
of any Unit Interest, the gross sales proceeds payable by the purchaser
thereof, minus all customary and reasonable title insurance charges,
escrow fees, legal fees, real estate taxes and other prorations
approved by Lender, transfer taxes and market rate real estate brokers'
commissions, all to the extent payable as a result of the sale of such
Unit Interest, provided, however, if there is a holdback escrow as a
result of the sale of such Unit Interest, then the Net Sales Proceeds
shall not include the amount of such escrow until such amount is
delivered to Borrower, further provided, that any such holdback escrow
shall not be greater than $1,500.
2.40 "Notes" shall mean the Demand Note and the Mortgage Note.
2.41 "Obligors" shall mean Borrower and Member.
2.42 "Permitted Exceptions" shall mean the exceptions to the
title of the Real Property listed on Exhibit C attached hereto.
2.43 "Person" shall mean any individual, firm, corporation,
business enterprise, trust, association, joint venture, partnership,
limited liability company, governmental body or other entity, whether
acting in an individual, fiduciary or other capacity.
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2.44 "Personal Property" shall mean and include any and all
furniture, furnishings, appliances, equipment and all fixtures (to the
extent such fixtures are attached in a manner so as not to be deemed to
be part of the Real Property) to be located in the Units or otherwise
at the Land which will be used or usable in connection with the
ownership, development, construction or operation of the Project and
which will be owned, leased or otherwise possessed by Borrower or any
of its affiliates, including all of such personal property contemplated
under the Plans and Specifications.
2.45 "Plans and Specifications" shall mean, collectively, the
architectural and engineering plans and specifications relating to the
Work or any portion thereof, all of which must be acceptable to Lender
in its sole and absolute discretion.
2.46 "Prime Rate" shall mean an annual rate of interest equal
to the prime rate as publicly announced by Lender to be in effect from
time to time, adjusted and changing when and as said prime rate
changes.
2.47 "Principal Balance" shall mean the unpaid principal
balance of the Loans outstanding from time to time.
2.48 "Project" shall mean the residential condominium complex
more fully described in Section 1.2 above.
2.49 "Project Cost" shall mean each of the following items,
but only to the extent specifically set forth in the Budget and only to
the extent specifically required to complete the Project:
(a) The actual hard costs of completing
construction of the Improvements, including demolition and
environmental remediation costs;
(b) The actual costs of acquiring the Land and
acquiring and installing the Personal Property;
(c) Premiums for title, casualty, liability and
other insurance required by Lender;
(d) The cost of recording and filing the Loan
Documents;
(e) Real estate taxes and other assessments
which Borrower is obligated to pay during the term of the
Loans;
(f) Interest, fees and similar charges payable
by Borrower to Lender hereunder or under the Notes;
(g) Legal and other closing costs;
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(h) Architectural, engineering and consulting
fees;
(i) Such other soft costs as may be set forth in
the Budget or as may be hereafter approved in writing by
Lender; and
(j) All other Loan Expenses.
2.50 "Property" shall mean the Real Property, the Building and
the Personal Property (whether before or after completion of the Work)
and all other tangible and intangible assets benefiting or otherwise
appertaining to the Project, including, without limitation, all of the
collateral for the Loans described in the Loan Documents.
2.51 "Real Property" shall mean the Land, the Improvements and
all easements and appurtenants thereto.
2.52 "Reserves" shall mean the reserves described in Section
5.7 below.
2.53 "Retainage" shall mean the portion of each Loan Advance
retained by Lender in accordance with Section 5.5 below.
2.54 "Security Agreement" shall mean the security agreement
encumbering the Personal Property to be made by Borrower to Lender to
secure the Loans.
2.55 "Subcontracts" shall mean all subcontracts now or
hereafter entered into by the Contractor for the construction of any of
the Improvements or the installation of any of the Personal Property or
the performance of any other aspect of the Work, together with all
sub-subcontracts, material or equipment purchase orders, equipment
leases and other agreements entered into by the Contractor, any
subcontractor or any other party supplying labor or materials in
connection with the Work.
2.56 "Survey" shall mean the plat of survey of the Real
Property as described in Section 4.3 below.
2.57 "Title Company" shall mean Near North National Title
Corporation, as issuing agent for First American Title Insurance
Company.
2.58 "Title Policy" shall mean the title insurance policy
described in Section 4.5 below.
2.59 "Unit" shall mean a residential condominium unit dwelling
located within the Building that is to be sold to purchasers in a fully
finished (but unfurnished) condition, as more fully described in the
plans to be delivered to Lender (which plans are subject to Lender's
approval).
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2.60 "Unit Interest" shall mean an ownership interest in a
Unit, together with the undivided ownership interest in the common
elements, easements and other rights appurtenant to such Unit, as more
fully provided in the Condominium Documents to be approved by Lender.
2.61 "Unmatured Default" shall mean an event or circumstance
that with the giving of notice, the passage of time, or both, would
constitute an Event of Default.
2.62 "Work" shall mean the performance of all work to be
performed and the supplying of all materials to be supplied in
connection with the building, furnishing, fixturing and equipping of
the Project, all in accordance with the provisions of this Agreement
and with the Plans and Specifications, the Budget and other
documentation approved by Lender.
3. COMMITMENT TO LEND; COMMITMENT FEE.
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3.1 Maximum Construction Loan Amount. Lender agrees to lend to
Borrower, and Borrower agrees to borrow from Lender, an amount not to
exceed $5,250,000 for the purposes, upon the terms and subject to the
conditions contained in this Agreement. Notwithstanding anything
contained in this Article to the contrary, Loan Advances shall be
limited to such amounts as Borrower is eligible to receive pursuant to,
and upon compliance with, the conditions of Article 5 hereof. Borrower
may prepay all or any part of the Construction Loan at any time and
from time to time upon five days prior written notice to Lender without
cost or penalty. Borrower shall not be entitled to reborrow portions of
the Construction Loan that are repaid or prepaid pursuant to, and upon
compliance with, the conditions of Article 4 hereof.
3.2 Loan Advances Evidenced by Mortgage Note. All Loan
Advances hereunder shall be evidenced by the Mortgage Note, which shall
be executed and delivered by Borrower simultaneously with the execution
of this Agreement.
3.3 Payment of Interest and Principal. Payments of principal
and interest due under the Notes, if not sooner declared to be due in
accordance with the provisions of the Notes or this Agreement, shall be
made as follows:
(a) Commencing on the first Business Day of the
calendar month following the Initial Advance and on the first
Business Day of each calendar month thereafter through and
including the calendar month in which the Maturity Date
occurs, accrued and unpaid interest only on the Principal
Balance shall be due and payable;
(b) Upon the consummation of each sale of a
Unit, a payment equal to 100% of the Net Sales Proceeds with
respect to such Unit;
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(c) The principal balance of the Mortgage Note, if
not sooner declared to be due in accordance with the terms of
the Mortgage Note or this Agreement, together with all accrued
and unpaid interest thereon, shall be due and payable in full
on the Maturity Date.
Borrower hereby authorizes Lender on the first day of each month during
the term of the Construction Loan (and on any other date on which
interest is due under the Mortgage Note) to disburse to itself from the
undisbursed proceeds of the Construction Loan all then accrued and
unpaid interest on the Construction Loan, and Lender agrees to disburse
Construction Loan proceeds to itself to pay such interest, provided all
conditions precedent to such disbursement as set forth in this
Agreement are satisfied; provided, however, that neither such
authorization nor agreement shall be deemed to limit, reduce or
otherwise affect Borrower's obligation to pay interest if (a) there are
no remaining amounts in the Budget allocated for the payment of
interest (including Reserves specifically allocated to pay interest),
or (b) Lender is entitled to withhold disbursement of the Construction
Loan for any reason. Any amounts disbursed from the interest reserve
shall become part of the outstanding principal balance and interest
thereon shall accrue and be payable as provided in the Mortgage Note.
3.4 Default Rate. At any time, after the Maturity Date or
otherwise, when an Event of Default exists under this Agreement or any
of the other Loan Documents, the Principal Balance and any other
amounts then owing by Borrower to Lender shall bear interest at the
Default Rate.
3.5 Late Charge. If any payment of interest or principal due
under the Notes is not made within ten days after such payment is due,
then, in addition to the payment of the amount so due, Borrower shall
pay to Lender a "late charge" equal to five percent (5.0%) of the
amount of that payment or $25.00, whichever is greater, to compensate
Lender for the cost of collecting and handling such late payment.
3.6 Fees. Lender has fully earned a non-refundable loan and
administration fee in the amount of $52,500.00, and, concurrently with
the execution of this Agreement, the unpaid balance of such fee shall
be due and payable by Borrower.
3.7 Letter of Credit; Letter of Credit Fees and Cash
Collateral.
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(a) Concurrently with the Initial Advance, Lender
shall issue the Letter of Credit on Lender's standard form and
otherwise in form and substance acceptable to Lender in an
aggregate amount of $3,000,000; provided, however, that prior
to and as a condition to Lender being obligated to issue the
Letter of Credit, Borrower shall pay to Lender an issuance fee
equal to $30,000 and such issuance fee shall be deemed to be
fully earned upon the payment thereof. Provided that the
Letter of Credit is then outstanding, on October 20, 2000,
January 20, 2001, April 20, 2001 and July 20, 2001, Borrower
shall pay to Lender
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a quarterly fee equal to $7,500, which such fee shall be
deemed to be fully earned upon the payment thereof.
(b) Any amounts disbursed by Lender under the Letter
of Credit at any time and from time to time shall be deemed
disbursements of proceeds of the Loans and shall be due and
payable by Borrower to Lender at the times and in the manner
set forth in the Demand Note.
(c) If the Letter of Credit is outstanding prior to
Maturity Date, but subsequent to the repayment in full of the
Construction Loan, then upon the consummation of each sale of
a Unit Interest, Borrower shall deliver cash collateral equal
to 50% of the Net Sales Proceeds with respect to such Unit
Interest shall be delivered to Lender. If the Letter of Credit
is outstanding on the Business Day immediately preceding the
Maturity Date (or if an amount has then been drawn on the
Letter of Credit which has not been reimbursed or repaid),
Lender may demand delivery of cash collateral in an amount
equal to the then outstanding Letter of Credit Liability, and
such cash collateral may be retained by Lender until such time
as the Letter of Credit Liability is reduced to $0. Lender may
apply any such cash collateral to the payment of any amounts
thereafter drawn on the Letters of Credit which have not been
reimbursed or repaid to Lender by Borrower. The failure to
deliver any such cash collateral upon demand shall constitute
an immediate Event of Default under the Loan Documents. The
repayment of any draws on the Letters of Credit shall be
secured by the Loan Documents, and so long as any Letter of
Credit is outstanding, Lender shall not be required to issue a
full release of the Loan Documents.
4. LOAN DOCUMENTS. Prior to the Initial Advance, Borrower shall execute
and/or deliver to Lender those of the following documents and other items
required to be executed and/or delivered by Borrower, and shall cause to be
executed and/or delivered to Lender those of the following documents and other
items required to be executed and/or delivered by others, all of which documents
and other items shall contain such provisions as shall be required to conform to
this Agreement and otherwise shall be satisfactory in form and substance to
Lender:
4.1 The Loan Documents.
4.2 UCC financing statements perfecting the security interests
created by the Security Agreement.
4.3 Three copies of a plat of survey (the "Survey") prepared
and certified by a registered or certified surveyor in compliance with
the 1992 Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, including Table A items 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 13.
The Survey shall be as of a current date and shall bear a
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statement of the surveyor stating that the Survey and the ALTA
certification run to the benefit of Lender and the Title Company.
4.4 Such insurance policies and certificates (with premiums
prepaid) evidencing builder's risk insurance, all-risk, fire and
extended coverage, hazard and comprehensive liability insurance,
including contractual liability, workmen's compensation insurance, and
such other insurance as Lender reasonably requires covering the
Project, in such form, with such endorsements, in such amounts, with
deductibles and with such carriers as shall be acceptable to Lender,
and naming Lender as an additional insured party on all liability
policies and as mortgagee/additional loss payee on the builder's risk
and other property damage policies and containing a prohibition against
cancellation for nonpayment of premiums or any other reason or
modification without thirty days prior written notice to Lender. Any
provision of this Section to the contrary notwithstanding, all
insurance policies required to be carried under this Agreement shall
provide expressly that they shall not be rendered invalid by a waiver
of the right of subrogation by any insured and that the insurer shall
have no right to be subrogated to Lender. Borrower shall deliver (or
cause to be delivered) to Lender either (i) an original of each such
insurance policy, or (ii) a copy of each such policy certified by the
issuing agent as being a true, correct and complete copy of the
original.
4.5 An ALTA Construction Loan Policy of Title Insurance (the
"Title Policy") issued by the Title Company in the full amount of the
Notes insuring that the Mortgage will be a first priority lien upon the
fee simple title to the Real Property to the extent of advances made by
Lender from time to time under this Agreement, subject to no liens,
claims, exceptions or encumbrances except the Permitted Exceptions and
containing the following endorsements:
(a) Endorsements for Interim Certification;
(b) ALTA Broad Form 3.1 Zoning Endorsement,
including coverage for parking and for loading docks and bays
and deleting the marketability limitation, based upon the
completion of the Project in accordance with the Plans and
Specifications;
(c) Comprehensive Endorsement No. 1 (in form
modified for construction loans);
(d) Access Endorsement;
(e) Survey Endorsement;
(f) Contiguity Endorsement;
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(g) Variable Rate Endorsement;
(h) Endorsement deleting the creditors' rights
exception;
(i) Condominium Endorsement No. 4;
(j) Letter of Credit Endorsement;
(k) Usury Endorsement; and
(l) Such additional endorsements as may be
reasonably required by Lender based upon its review of the
Title Policy and Survey.
4.6 Copies of such documents, if any, as Borrower has provided
the Title Company in connection with the issuance and underwriting of
the Title Policy.
4.7 Copies of all recorded documents described in the Title
Policy.
4.8 Current Uniform Commercial Code, federal and state tax
lien and judgment searches, pending suit and litigation searches and
bankruptcy court filings searches covering each Obligor and disclosing
no matters objectionable to Lender.
4.9 A Certificate executed by the Architect containing the
following: (a) a detailed list of the final Plans and Specifications of
the Work; (b) a statement that such Plans and Specifications are
complete in all respects and show all work and material required for
construction of the Project, which when completed in accordance
therewith, shall render the Project ready for use and occupancy for its
intended purposes in compliance with all Applicable Laws; (c) a
statement that the Plans and Specifications were prepared in a manner
consistent with accepted architectural or engineering practices, as the
case may be, and in full compliance with all Applicable Laws relating
to the construction of the Project; (d) a list of all certificates,
permits, licenses, consents and authorizations of governmental
authorities which will be required for the performance of the Work, and
a statement that either (i) all such certificates, permits, licenses
and other authorizations of governmental authorities which are
necessary to construct the Project have been obtained and are in full
force and effect, or (ii) there are no impediments to obtaining such
certificates, permits, licenses and other authorizations; and (e) a
statement that adequate sewer, water, electrical power and other public
and private utilities are available to the site in such capacities as
to adequately service the Project upon completion thereof.
4.10 The consent of the Contractor and the Architect to the
collateral assignment of the Construction Contract and the
Architectural Contract, respectively, pursuant to the Assignment of
Plans.
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4.11 The Plans and Specifications, which have been approved by
Borrower and the Contractor and approved and stamped by the appropriate
governmental authorities, including detailed descriptions (with
drawings and specifications).
4.12 Certified copies of the Construction Contract and the
Architectural Contract, all licenses, permits and governmental
approvals necessary for the construction, use or operation of the
Project and all other documents and instruments relating to performance
of the Work.
4.13 Opinion letter from Jenner & Block, legal counsel for
Borrower opining to the authority of said parties to execute, deliver
and perform their respective obligations under the Loan Documents, to
the validity and binding effect of the Loan Documents and to such other
matters as Lender and its counsel shall require.
4.14 A soil test report prepared by a licensed soil engineer
approved by Lender and otherwise satisfactory in all respects to Lender
containing, among other things, boring logs and the locations of all
borings and confirming that no condition exists with respect to the
Land which would cause subsidence of any portion of the Land and
showing that no state of facts exists which would adversely affect the
completion of the Work in accordance with the Plans and Specifications
or would require any costs with respect thereto not otherwise provided
for in the Budget.
4.15 Evidence that (i) no portion of the Real Property is
located in an area designated by the Secretary of Housing and Urban
Development as having special flood hazards, or if any portion of the
Real Property is so located, evidence that flood insurance is in
effect; and (ii) no portion of the Real Property is located in a
federally, state or locally designated wetland or other type of
government protected area.
4.16 Certified copies of the Operating Agreement and Articles
of Organization of Borrower, together with all amendments thereto, and
such resolutions and other documents as Lender deems appropriate
evidencing the authority of Borrower to execute and deliver the Loan
Documents to which such Persons are a party and to perform the
obligations contemplated hereby and thereby.
4.17 Certified copies of the general partnership agreement of
Member, and certified copies of the articles of incorporation creating
the Heartland, together with all amendments thereto, and such
resolutions and other documents as Lender deems appropriate evidencing
the authority of Borrower and Member to execute and deliver the Loan
Documents to which such Persons are a party and to perform the
obligations contemplated hereby and thereby.
4.18 Certified copies of all service contracts, development
agreements and other agreements affecting the use, development or
operation of the Project, if any.
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4.19 Evidence that the environmental condition of the Property
is, and the environmental condition of the Project upon completion will
be, satisfactory to Lender, including, without limitation, evidence
that there are no conditions at or with respect to the Property that
require disclosure upon a mortgage, conveyance or other transfer of the
Property pursuant to the Illinois Responsible Property Transfer Act.
Such evidence shall include, but shall not be limited to, a "Phase I
Environmental Audit" (as defined in the Illinois Environmental
Protection Act) certified to Borrower and Lender and setting forth an
asbestos evaluation and other environmental investigations of the
Property and the areas surrounding the Property. Such testing and
investigation shall be performed by an "environmental professional" (as
defined in the Illinois Environmental Protection Act) acceptable to
Lender in a manner satisfactory to Lender.
4.20 Evidence that, as of the date of the initial Loan
Advance, there has been no material adverse change in the financial or
other projections for the Project, the physical condition of the
Property or the financial condition of Borrower since the date of the
most recent financial statements or projections delivered to Lender or
the most recent inspections of the condition of the Property made by
the Consultant, as the case may be.
4.21 Form of proposed sales contracts and other documents to
be used in connection with the sale of the Unit Interests, together
with a schedule of minimum sales prices therefor.
4.22 An MAI appraisal satisfactory to Lender indicating the
aggregate fair market value of the Project is acceptable to Lender.
4.23 Certified copies of any sale contracts, letters of intent
and other agreements relating to the sale of the Unit Interests that
have been executed as of the date of the initial Loan Advance.
4.24 A detailed marketing and sales projection, including a
projection of the amount of time required to close sales of the Unit
Interests.
4.25 Copies of the forms of all of the Condominium Documents.
4.26 Evidence that the Property is, and upon completion the
Project will be, in compliance with all Applicable Laws.
4.27 A reasonably detailed Project development and
construction schedule specifying all of the projected start and
completion dates (or delivery dates) for each component of development
of the Project, including each separate component of performance of the
Work and each required license, permit or other public or private
approval.
4.28 Such other assignments, certificates, opinions and other
documents, instruments and information affecting or relating to
Lender's interest in the Project or the
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use, operation, development or construction of the Project as Lender
may reasonably require.
5. DISBURSEMENT OF THE LOAN.
------------------------
5.1 Conditions Precedent. In addition to the other conditions
set forth herein, the obligation of Lender to make the initial and each
subsequent disbursement of the Construction Loan under this Agreement
shall be conditioned upon and subject to the payment to Lender of all
loan fees then owing from Borrower to Lender and to satisfaction of all
of the following conditions:
(a) All representations and warranties contained in
this Agreement and in the other Loan Documents shall be true
in all material respects on and as of the date of such
disbursement.
(b) Borrower shall have performed all of its
obligations under all Loan Documents which are required to be
performed on or prior to the date of such disbursement.
(c) The Construction Loan shall not be "out of
balance" as determined under Section 5.8 below, and the
disbursement shall not cause the Construction Loan to be "out
of balance."
(d) There shall be no material adverse change in the
financial condition of Borrower as reasonably determined by
Lender.
(e) No Event of Default shall have occurred that has
not been waived in writing by Lender, and no Unmatured Default
shall then exist.
5.2 Use of Construction Loan Proceeds; Inspections of the
Work. The proceeds of the Construction Loan disbursed to Borrower shall
be used by Borrower solely for the purpose of paying (or reimbursement
to others for payment of) items of Project Cost actually incurred by
Borrower, and, in connection therewith, no Project Cost shall include
expenses relating to any development, construction, operating or other
cost attributable to any project other than the Project specifically
described in this Agreement. Notwithstanding anything contained in this
Agreement to the contrary, all inspections of the Work made by Lender,
the Consultant or their respective agents, employees and designees
shall be solely for Lender's own information and shall not be deemed to
have been made for or on account of Borrower or any other party.
Borrower hereby specifically relieves Lender of any and all liability
or responsibility relating in any way whatsoever to the construction of
the Project, including but not limited to, the work thereat, the
material or labor supplied in connection therewith, and any errors,
inconsistencies or other defects in the Project or the Plans and
Specifications.
5.3 Disbursement Requests.
---------------------
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(a) Borrower shall request and Lender shall be
required to make disbursement of the Construction Loan not
more frequently than once each calendar month. Lender may at
any time take such action as it deems appropriate to verify
that the conditions precedent to each disbursement have been
satisfied, including, without limitation, verification of any
amounts due under the Construction Contract or any
Subcontract. Borrower agrees to cooperate with Lender in any
such action. If in the course of any such verification, any
amount shown on any contract or subcontract entered into for
the performance of any portion of the Work, or any application
for payment, sworn statement or waiver of lien is subject to a
possible discrepancy, such discrepancy shall be eliminated by
Borrower to Lender's satisfaction. Each request for
disbursement shall be made by a letter from the chief
financial officer of the Borrower, addressed to Lender,
specifying in detail the amount and mode of each disbursement
and accompanied by the following, all in form and substance
satisfactory to Lender:
(i) An Owner's Sworn Statement and
disbursement request;
(ii) A Contractor's Application for Payment
and Sworn Contractor's Statement from Contractor, and
a statement of a duly authorized officer of
Contractor that all items of construction cost have
been incorporated into the Project in accordance with
the Plans and Specifications, together with waivers
of lien with respect to the current disbursement and
all previous disbursements from Contractor and all
subcontractors and materialmen to whom payment is to
be made, as are required by the Title Company as a
condition to issuing the date-down endorsement
described in subparagraph 5.3(b) below;
(iii) A certificate of the Architect
certifying (based on its diligent investigation of
the Project and the Work then performed) (A) that all
construction to the date of the request for
disbursement has been completed in accordance with
the Plans and Specifications; (B) the percentage of
completion of each component of the Work; (C) its
approval of the request for disbursement; (D) that
there has been no material deviation from the
contract amount under the Construction Contract or
any Subcontract or from the projected time of
completion of any component of the Work; and (E) the
total construction cost to complete the construction
of the Project and that after giving effect to all
amounts previously certified for payment, plus the
amount then requested, the remaining uncertified and
undisbursed funds shall be sufficient to pay all
costs required to complete the construction of the
Project in accordance with the Plans and
Specifications; and
(iv) An inspection report of the Consultant
certifying the percentages of completion of the
components of the Work and setting forth the amount
authorized for disbursement and such other matters as
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Lender may require (including compliance with the
Plans and Specifications). (It is understood and
agreed by Borrower that any and all inspections of
the Work made by Lender, the Consultant or their
respective agents, employees and/or designees shall
be solely for Lender's own information and shall not
be deemed to have been made for or on account of
Borrower or any other party, and that Lender shall
have no liability or responsibility relating in any
way whatsoever to the construction of the Project,
including, but not limited to, the work thereon, the
material or labor supplied in connection therewith,
and any errors, inconsistencies or other defects in
the Plans and Specifications.)
(v) Such other documents, assignments,
certificates and opinions as are required by the
Title Company, or as may be reasonably required by
Lender.
(b) Notwithstanding anything contained in this
Agreement to the contrary, Lender shall not be required to
make any disbursement of the Construction Loan pursuant to
this Agreement until the Title Company is prepared to issue an
endorsement to the Title Policy, updating the same to the date
of such disbursement and increasing the amount of coverage
(including mechanic lien coverage) thereunder to the Principal
Balance (taking into account the then current disbursement),
and insuring the lien of the Mortgage to be superior to all
defects in title other than the Permitted Exceptions and other
exceptions hereafter approved by Lender in writing.
(c) No disbursement of any amount shown in the Budget
as a contingency reserve shall by made without Lender's
approval with respect to the type and amount of the requested
expenditure, which approval shall not be unreasonably
withheld.
5.4 Certifications, Representations and Warranties. Each
request for disbursement by Borrower shall constitute (a) Borrower's
certification that the representations and warranties contained in
Article 6 below are true and correct in all material respects as of the
date of such request, (b) Borrower's certification that Borrower is in
compliance with the conditions contained in this Article 5, and (c)
Borrower's representation and warranty to Lender, with respect to the
Work, materials and other items for which payment is requested that (i)
such Work and materials have been incorporated into the Project, free
and clear of liens and encumbrances, (ii) the value thereof is as
estimated therein, (iii) such Work and materials substantially conform
to the Plans and Specifications, this Agreement and all Applicable
Laws, and (iv) the requisitioned value of such Work and materials and
the amounts of all other items of cost for which payment is requested
by Borrower have theretofore been in fact paid for in cash by Borrower
or the same are then due and owing by Borrower and (unless Lender
disburses funds directly to the parties performing the Work or to the
Title Company) will in fact be paid in cash by Borrower within five
days after Borrower's receipt of the
17
requested disbursement. Neither review nor approval by Lender of
requests for disbursement or any information contained therein or any
other information provided to Lender in accordance with the other
provisions of this Article 5 shall constitute the acceptance or
approval by Lender of any portion of the Work.
5.5 Amount of Disbursements; Retainage. Subject to the other
conditions and limitations set forth herein, the amount of each
disbursement shall be the amount requested by Borrower; provided,
however, that (a) Lender shall have the right to retain 10% of each
"hard cost" item of Project Cost (other than amounts requested for
payment to suppliers of materials only who have either fully delivered
all materials or delivered such portion thereof whereby it is
reasonable and necessary to fully pay for such materials)(the
"Retainage"), which Retainage shall be disbursed in accordance with the
provisions of Section 5.10 below, and (b) in no event shall Lender be
obligated to disburse for any item an amount in excess of the amount
allocated for such item pursuant to the Budget, including any Reserve
set aside specifically for such item as provided in Section 5.7 below.
5.6 Costs. For purposes of this Agreement, including without
limitation, Section 5.2 hereof, (a) the cost of labor and material
furnished for the Work shall be deemed to be incurred by Borrower when
the labor and material have been incorporated into the Project and the
payment therefor is due and payable, (b) the cost of services (other
than labor included in the Work) shall be deemed to be incurred by
Borrower when the services are actually rendered and the payment
therefor is due and payable, (c) real estate taxes, interest and
insurance premiums shall be deemed to be incurred by Borrower when such
items become due and payable, and (d) any other costs shall be deemed
to be incurred by Borrower when the payment therefor is due and
payable, but not before the value to be received in return for such
cost has been received by Borrower.
5.7 Reserves. In addition to any reserves for specific line
items that are already established in the Budget, Lender may establish
and set aside out of the undisbursed proceeds of the Construction Loan,
reserves (collectively, the "Reserves") in such amounts as may be
reasonably estimated by Lender from time to time to provide for payment
of the items of Project Cost as the same may accrue or become payable
prior to the repayment in full of the Construction Loan. Amounts set
aside as Reserves shall not be available for disbursement to Borrower
for any purpose other than payment of the item or group or items for
which the Reserve was established. Based upon the facts then available
to Lender, Lender may adjust and reallocate the amount of any Reserve
from time to time. Items for which Reserves may be established shall
include (i) Loan Expenses, (ii) interest on the Loans, (iii) real
estate taxes and assessments, (iv) premiums on insurance policies and
bonds (if any) required to be furnished by Borrower hereunder (v)
professional fees and (vi) promotion and sale costs.
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5.8 Loan In Balance. At all times prior to repayment of the
Loans in full, (a) the sum of the undisbursed Construction Loan
proceeds allocated to each line item in the Budget (including any
Reserve specifically set aside for such line item) must be sufficient,
in Lender's reasonable determination, to pay the unpaid costs and
expenses that will be incurred to complete such item, and (b) the
aggregate undisbursed Construction Loan proceeds, as set forth in the
Budget, must be sufficient, in Lender's reasonable determination, to
pay all unpaid Project Costs and all operating, management and other
expenses of the Property through the projected date on which all of the
Unit Interests will be sold (or such earlier date by which the Loans
will be fully repaid from the proceeds of sales of Unit Interests), as
such dates are reasonably determined by Lender from time to time.
Lender and Borrower mutually acknowledge that the Budget includes an
amount necessary to complete all of the Units. If Lender reasonably
determines that (i) the costs and expenses to complete any line item in
the Budget exceeds the remaining undisbursed Construction Loan proceeds
allocated therefor, or (ii) the remaining Project Costs and all
estimated operating, management and other expenses of the Project
through the projected date on which all of the Unit Interests will be
sold (or such earlier date by which the Loans will be fully repaid from
the proceeds of sales of Unit Interests), as such dates are reasonably
determined by Lender from time to time, exceeds the sum of the
aggregate undisbursed Construction Loan proceeds, as set forth in the
Budget, then the Construction Loan shall be deemed "out of balance" to
the extent of such excess. The Construction Loan shall also be deemed
to be "out of balance" if Lender reasonably determines that the
aggregate prices at which the Unit Interests can be sold are less than
the aggregate Minimum Sales Prices for the Unit Interests, and/or the
pace of the sales of the Unit Interests is slower than that projected
by Borrower when establishing the Budget, and, as a result of either of
such circumstances, there will not be sufficient revenue generated from
the Project to pay all of Borrower's obligations under the Loan
Documents as and when required. In the event that Lender determines
that the Construction Loan is out of balance, Borrower shall, within
five (5) days after written request by Lender, deposit with Lender the
amount reasonably required by Lender to eliminate the out-of-balance
deficiency, whereupon the sums thus deposited by Borrower with Lender
will be disbursed by Lender to complete the Work prior to any further
disbursement of Construction Loan proceeds (or, if the Work has been
completed, to the repayment of the outstanding principal balance of the
Loans and other amounts payable under the Loan Documents). No interest
shall be payable to Borrower on the amounts so deposited, nor to Lender
on such amounts when disbursed to pay the cost of any Work. Borrower
agrees to furnish to Lender, upon request, all information required by
Lender to make the determinations described in this Section.
5.9 Escrow; Application of Disbursements.
------------------------------------
(a) Lender shall make each requested disbursement of the
Construction Loan through a construction escrow with the Title Company
within ten days after all of the conditions precedent to such
disbursement set forth in this Article have been satisfied (including
delivery of all documentation required under Section 5.3 above), except
that Lender, in its discretion, may make payments of Project Cost
directly to Borrower or to
19
the person or entity Lender determines is entitled to such payment or
jointly to Borrower and such person or entity. The escrow agreement
governing such construction escrow shall be in form and substance
acceptable to Lender.
(b) Notwithstanding the foregoing, Lender shall not be
responsible, liable or obligated to the contractors, subcontractors,
suppliers, materialmen, laborers, architects, engineers, or any other
parties, for services or work performed, or for goods delivered by them
or any of them, in and upon the Land or employed directly or indirectly
in the performance of the Work, or for any debts or claims whatsoever
accruing in favor of any such parties and against Borrower or others,
or against the Project. It is expressly understood and agreed that
Borrower is not and shall not be an agent of Lender for any purpose
whatsoever. Without limiting the generality of the foregoing, advances
made at Lender's option, directly to any contractor, subcontractor or
supplier of labor or materials, or any other party, shall not be deemed
a recognition by Lender of any third party beneficiary status of any
such person or entity.
(c) Borrower covenants and agrees that it shall receive all
advances of Construction Loan proceeds to be made hereunder by Lender
as a trust fund and that Borrower shall withdraw and use said funds
solely for the payment of the bills for the labor and materials used in
the performance of the Work for which such Construction Loan funds were
requested by Borrower, and for the payment of the other items of
Project Cost for which such Construction Loan proceeds were requested
by Borrower, and for no other purpose whatsoever; however, nothing
herein shall impose upon Lender any obligation whatsoever to see to the
proper application of any such monies by Borrower.
(d) Whenever so requested by Lender, Borrower shall promptly
furnish Lender written evidence reasonably satisfactory to Lender that
all monies theretofore advanced by Lender pursuant to this Agreement
have actually been paid or applied in payment of the cost of
performance of the Work and in payment of the other items of Project
Cost for which such funds were advanced by Lender, and until such
evidence is produced, at the option of Lender, no future or additional
payments or advances of Construction Loan funds need be made hereunder.
5.10 Release of Retainage. Retainage(s) shall be released as
follows:
(a) Retainage on any Subcontract shall be released within
thirty days after such Subcontract has been fully performed and the
following conditions have been satisfied:
(i) Borrower has delivered final and unconditional
waivers of lien from the subcontractor whose individual
Subcontract has been fully performed to the Title Company with
copies to Lender;
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(ii) All conditions precedent to disbursement of
proceeds of the Construction Loan as set forth in this
Agreement have been fully satisfied; and
(iii) Lender has received a certificate in writing
signed by a duly authorized officer of Contractor and
Architect certifying that the Work provided for in the
Subcontract has been fully and satisfactorily completed in
accordance with the Plans and Specifications, and in
compliance with all Applicable Laws, and the Consultant has
approved all such Work.
(b) Final disbursement of construction retainages to the
Contractor for the Work not previously released shall be made upon
satisfaction of the following conditions in addition to satisfaction of
the other conditions precedent for disbursement of proceeds of the
Construction Loan by Lender:
(i) Borrower has delivered to Lender (A) a
certificate in writing signed by a duly authorized officer of
the Contractor certifying that all obligations of the
Contractor under the Construction Contract and all obligations
of the subcontractors under the Subcontracts have been fully
performed, and (B) a certificate signed by the Architect,
certifying that the construction of the Work has been
completed in all respects in accordance with the Plans and
Specifications and the use and occupancy of the Project is
permitted under all Applicable Laws;
(ii) If requested by Lender, Lender shall have
received a certificate in writing signed by the Consultant
certifying that the construction of the Work has been
completed in all respects in accordance with the Plans and
Specifications and the use and occupancy of the Project is
permitted under all Applicable Laws;
(iii) Borrower has delivered to Lender all applicable
licenses or permits necessary for the use of the Project,
including without limitation, a final, unconditional
certificate of occupancy the Project;
(iv) Borrower has delivered to Lender original
policies of fire and extended coverage insurance as herein
required, with Lender named as mortgagee and as an additional
insured party and loss payee;
(v) The Title Company is unconditionally prepared to
issue its final updated ALTA loan policy of title insurance
covering the Principal Balance, subject only to the Permitted
Exceptions and other exceptions approved by Lender in writing,
and containing its final forms of Comprehensive Endorsement 1
and ALTA 3.1 Zoning Endorsement (without exception and based
on as-built conditions), full coverage against all mechanics'
liens and such other endorsements as are required under
Section 4.5 above;
(vi) Borrower has delivered to the Title Company and
Lender final and unconditional waivers of lien from the
Contractor and all subcontractors and
21
materialmen who have supplied labor or material in connection
with the Work and who have not previously submitted such final
waivers.
6. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to
execute this Agreement and to make the Loans, Borrower represents and warrants
to Lender as follows:
6.1 Borrower. Borrower is a duly formed limited liability
company, validly existing and in good standing in the State of Illinois
and has full power and authority to execute and deliver the Loan
Documents and to perform its obligations hereunder and thereunder.
Member is the sole member of Borrower and Borrower is managed solely by
Member. The Amended and Restated Limited Liability Company Agreement
dated as of May 9, 1997, creating Borrower and the Articles of
Organization of Borrower, copies of which have been furnished to
Lender, are in effect, unamended and is the true, correct and complete
documents relating to Borrower's creation and governance. Borrower,
Member and their affiliates have fully complied with all applicable
securities and other laws and regulations in connection with the
formation of Borrower and the sale and offer for sale of interests
therein.
6.2 Member. Member is a duly formed general partnership
validly existing and in good standing in the State of Illinois and has
full power and authority to execute and deliver the Loan Documents and
to perform its obligations hereunder and thereunder. Heartland
Partners, L.P., a Delaware limited partnership and Heartland are the
sole general partners of Member. The Amended and Restated Partnership
Agreement dated as of June 27, 1990 creating Member, a copy of which
has been furnished to Lender, is in effect, unamended and is the true,
correct and complete documents relating to Member's creation and
governance. Member has fully complied with all applicable securities
and other laws and regulations in connection with the formation of
Member and the sale and offer for sale of interests therein.
6.3 Heartland. Heartland is a duly formed corporation under
the laws of the State of Delaware, validly existing, in good standing
and fully qualified to do business in the State of Illinois. The
articles of incorporation and by-laws of Heartland, copies of which
have been furnished to Lender, are in effect, unamended, and are the
true, correct and complete documents relating to Heartland's creation
and governance.
6.4 Title. Borrower owns good and marketable fee simple title
to the Real Property and the Personal Property. The Real Property and
the Personal Property are owned free and clear of all liens, claims and
encumbrances, except the Permitted Exceptions.
6.5 Improvements. Subject to the terms and conditions
contained in this Agreement, Borrower intends to improve the Land with
the Improvements. The Work will be performed in accordance with the
provisions of the Plans and Specifications and the Budget and all of
the other requirements of this Agreement.
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6.6 Validity and Enforceability of Documents. Upon the
execution and delivery of the Loan Documents, the Loan Documents shall
be valid and binding upon the parties that have executed the same in
accordance with the respective provisions thereof, and enforceable in
accordance with the respective provisions thereof, subject only to
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditor's rights. Execution,
delivery and performance of the Loan Documents do not and will not
contravene, conflict with, violate or constitute a default under the
Operating Agreement creating Borrower, the certificate of formation of
Borrower, or any Applicable Law or any agreement, indenture or
instrument to which Borrower, Member or Heartland is a party or is
bound or which is binding upon or applicable to the Project or any
portion thereof.
6.7 Litigation. There is not any condition, event or
circumstance existing, or any litigation, arbitration, governmental or
administrative proceeding, action, examination, claims or demand
pending or, to the best of Borrower's knowledge after due inquiry,
threatened affecting Borrower, Member or Heartland or the Project, or
involving the validity or enforceability of the Loan Documents or
involving any risk of a judgment or liability which, if satisfied,
would have an adverse effect on the financial condition, business or
properties of Borrower, Member or Heartland or the priority of the lien
of the Mortgage, or which would prevent Borrower or Member from
complying with or performing its obligations under this Agreement, the
Notes, or any of the other Loan Documents within the time limits set
forth therein for such compliance or performance and no basis for any
such matter exists.
6.8 Utilities; Authorities. All utilities necessary for use,
operation and occupancy of the Project (including, without limitation,
water, storm sewer, sanitary sewer and drainage, electric, gas and
telephone facilities) are available at the boundaries of the Land (or
in the streets adjoining the Land), and all requirements for the use of
such utilities have been fulfilled. All building, zoning, safety,
disabled persons, health, fire, water district, sewerage and
environmental protection agency permits and other licenses and permits
which are required by any governmental authority for construction of
the Improvements, and the use, occupancy and operation of the Project
in accordance with the Plans and Specifications have been obtained by
or furnished to Borrower and are in full force and effect or will be
obtained by and maintained in full force and effect by Borrower when
and as required by any governmental authority.
6.9 Solvency. Each Obligor is solvent and able to pay such
Obligor's debts as such debts become due, and has capital sufficient to
carry on such Obligor's present business transactions. The value of
each Obligor's property, at a fair valuation, is greater than the sum
of such Obligor's debts. No Obligor is bankrupt or insolvent, nor has
any Obligor made an assignment for the benefit of such Obligor's
creditors, nor has there been a trustee or receiver appointed for the
benefit of such Obligor's creditors, nor has there been any bankruptcy,
reorganization or insolvency proceedings instituted by or against any
Obligor, nor will any Obligor be rendered insolvent by such Obligor's
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execution, delivery or performance of the Loan Documents or by the
transactions contemplated thereunder.
6.10 Financial Statements. All financial statements submitted
to Lender relating to Borrower, Heartland and the Project are true,
complete and correct, and have been prepared in accordance with sound
accounting principles consistently applied and fairly present the
financial condition of the Person to which they pertain and the other
information therein described and do not contain any untrue statement
of a material fact or omit to state a fact material to the financial
statement submitted or this Agreement. No material adverse change has
occurred in the financial condition of Borrower, Heartland, any
Guarantor or the Project since the dates of each such financial
statements.
6.11 Compliance with Laws. Upon completion of the Work in
accordance with the Plans and Specifications, the Project and the use,
occupancy and operation thereof for their intended purposes will not,
violate any Applicable Laws, any contractual arrangements with third
parties or any covenants, conditions, easements, rights of way or
restrictions of record. Neither Borrower nor any agent thereof has
received any notice, written or otherwise, alleging any such violation,
which violation has not previously been cured. Upon completion of the
Work in accordance with the Plans and Specifications, the Project will
be in full compliance and conformity with all zoning requirements,
including without limitation, those relating to setbacks, height,
parking, floor area ratio, fire lanes and percentage of land coverage,
and will not be a non-conforming or special use.
6.12 Construction Contract. Pursuant to the Construction
Contract, the Contractor has agreed to construct the Improvements. The
Construction Contract is in full force and effect, unamended, and no
default exists thereunder by either party thereto. In the event of any
conflict between the terms of the Construction Contract, other
Subcontracts and this Agreement or any other Loan Document, Borrower
shall abide by and shall cause the Contractor to act in accordance with
the provisions of the Loan Documents.
6.13 Subcontracts. Borrower has delivered to Lender true,
complete and correct copies of all Subcontracts that have been entered
into prior to the date hereof. The Subcontracts that have been entered
into prior to the date hereof are in full force and effect, unamended,
and no default exists thereunder by any party thereto.
6.14 Architectural Contract. Pursuant to the Architectural
Contract, the Architect has agreed to perform architectural services in
connection with the design and construction of the Improvements. The
Architectural Contract is in full force and effect, unamended, and no
default exists thereunder by either party thereto.
6.15 Plans and Specifications. Borrower has delivered to
Lender true, complete and correct copies of all of the plans and
specifications listed in Exhibit D attached hereto and the plans and
specifications listed in Exhibit D are the Plans and Specifications
which have been approved by Lender.
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6.16 Budget. The Budget is a true, complete and correct budget
with respect to the costs of the Work (including both hard costs and
soft costs associated therewith). The total of all Project Costs as
specified in the Budget will not exceed $5,250,000.
6.17 Financing Statements. There are no UCC financing
statements in effect other than those to be filed and/or recorded by
Lender which name Borrower as debtor and pertaining to any rights in
any of the Personal Property.
6.18 Event of Default. No Event of Default has occurred, and
no Unmatured Default shall then exist.
6.19 Responsible Property Transfer Act. To Borrower's
knowledge, there are no facilities on the Real Estate that are subject
to reporting under Section 312 of the federal Emergency Planning and
Community Right-To-Know Act of 1986, 43 U.S.C. Section 11022, and
federal regulations promulgated thereunder. To Borrower's knowledge,
the Real Estate does not contain any underground storage tanks. The
Real Estate is not "real property" as the term is defined under Section
3 of the Responsible Property Transfer Act of 1988 (765 ILCS 90/1, et
seq.), as now or hereafter amended ("RPTA"). Neither the making of the
Loans by Lender nor the granting of a lien or security interest in the
Project to Lender by Borrower is subject to RPTA.
6.20 Federal Interstate Land Sales Full Disclosure Act;
Illinois Land Sales Registration Act of 1989. The Sale of the Units is
exempt from the registration and disclosure requirements of the Federal
Interstate Land Sales Disclosure Act, 15 U.S.C. Section 1701 et seq.,
and the Illinois Land Sales Registration Act of 1989, 765 ILCS 85/1 et
seq.
6.21 Additional Agreements. There are no management, leasing,
development or other agreements in existence that affect the Project,
other than those described in the schedule of Permitted Exceptions or
as described in Exhibit B of the Assignment of Plans.
All representations and warranties which have been made by Borrower in
this Agreement or the other Loan Documents shall be true in all
respects at the time of each disbursement of the Construction Loan, and
in the event of any material breach, misrepresentation or omission,
Lender shall have the absolute right to terminate its obligations under
this Agreement (without any obligation to refund any loan or other fees
previously paid), and upon demand by Lender, Borrower shall reimburse
Lender for the Loan Expenses, and Lender shall be entitled to recover
from Borrower all losses and damages resulting therefrom.
7. BORROWER'S COVENANTS.
--------------------
7.1 Manner of Construction. Borrower shall, at its sole cost
and expense, cause the construction of the Project to be diligently and
expeditiously carried out, in a
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good and workmanlike manner, in accordance with the Plans and
Specifications and all Applicable Laws. All materials, fixtures,
equipment or articles used in the renovation, construction or equipping
of the Project shall comply with the Plans and Specifications. Without
limiting the generality of the foregoing, Borrower will cause
construction to continue without interruption until completion, and to
be completed in accordance with the Plans and Specifications and
Applicable Laws prior to July 31, 2000. Construction of the each Unit
shall not be deemed to be complete until the Architect and the
Consultant have certified that each Unit can be used and occupied in
accordance with all Applicable Laws and a final, unconditional
certificate of occupancy has been issued by the city of Chicago
therefor.
7.2 Certificate of Completion. Within fifteen days after each
Unit is completed, Borrower shall deliver to Lender a certificate of
the Architect stating that the Unit has been completed in accordance
with the Plans and Specifications and all Applicable Laws.
7.3 Change Orders. Borrower shall not, without the prior
written approval of Lender, make or permit any modification of the
Plans and Specifications, or amend or modify the Construction Contract,
the Architectural Contract or enter into any change orders or
additional contracts for the performance of any portion of the Work;
provided, however, Borrower shall have the right to enter into one or
more change orders without Lender's consent, so long as (a) no Event of
Default or Unmatured Default exists under this Agreement or any of the
other Loan Documents, (b) the change order does not individually result
in a change in the cost of constructing the Project of more than
$50,000, (c) the change order does not, together with all other change
orders, result in a change in the cost of constructing the Project of
more than $200,000, (d) the change order does not affect any structural
portion of the Project, the overall appearance of the Project or the
use or operation of the Project in any material respect, and (e) any
increased cost resulting from the change order is paid for from the
contingency line item in the Budget. In any event, Borrower shall
deliver to Lender copies of all such change orders not requiring
Lender's prior approval, together with all related documentation, no
later than ten days after the execution thereof. Except to the extent
expressly permitted in this Section, Borrower shall not, without the
prior written approval of Lender, the Consultant and the Architect,
make or permit any change in the Plans and Specifications.
7.4 Compliance with Laws. Borrower shall comply or cause
compliance with all Applicable Laws governing the construction,
development, use and operation of the Project and the development,
operation and sale of the Units. Evidence of such compliance shall be
submitted to Lender on request.
7.5 Inspection. Upon reasonable prior written or oral notice
(which shall not be required in the event of an emergency), Borrower
shall permit inspection of the Property by Lender, the Consultant and
any other agent or designee of Lender. In addition, upon reasonable
prior written or oral notice (which shall not be required in the event
of an emergency), Borrower shall permit Lender and/or its agents and
designees
26
access to and the right to inspect, audit and copy all books, records,
contracts and other documents and information relating to Borrower or
the Property. Lender shall use reasonable efforts to keep confidential
all information and documentation obtained by Lender in connection with
such audits and inspections, except to the extent that Lender
determines, in its reasonable discretion, a need to disclose same;
provided, however, under no circumstances shall Lender have any
liability to Borrower in the event of an unintentional disclosure or
disclosure deemed necessary by Lender. All such books, records and
accounts of operations relating to the Property shall be kept in
accordance with sound accounting practices consistently applied.
Borrower shall promptly respond to any inquiry from Lender for
information with respect to the Property, which information may be
verified by Lender at Borrower's expense; provided, however, that
Lender shall at all times be entitled to rely upon any statements or
representations made by Borrower or any agent thereof.
7.6 Mechanics' Liens. Borrower shall not permit any mechanics'
lien claims to be filed or otherwise asserted against the Project or
against any funds due any contractor or subcontractor, and Borrower
shall promptly (and in any event within fifteen days after Borrower has
received notice of such filing) discharge or cause to be discharged the
same in case of the filing of any claims for lien or proceedings for
the enforcement thereof; provided that in connection with any such lien
or claim which Borrower may in good faith desire to contest, Borrower
may contest the same by appropriate legal proceedings diligently
prosecuted, but only if Borrower shall furnish to the Title Company
such security or indemnity as the Title Company requires to induce the
Title Company to issue an endorsement to the Title Policy insuring over
the exception created by such lien, and provided further, that Lender
shall not be required to make any further disbursements of the
Construction Loan until any mechanics' lien claims have been so insured
against by the Title Company.
7.7 Release by Lender. With respect to the matters set forth
in Section 7.6 above, if Borrower shall (a) fail promptly to discharge
any asserted liens or claims, or (b) fail promptly to contest asserted
liens or claims or to give security or indemnity in the manner provided
in Section 7.6 above, or (c) having commenced to contest the same, and
having given such security or indemnity, fail to prosecute such contest
with diligence, or to maintain such indemnity or security so required
by the Title Company for its full amount, or (d) upon adverse
conclusion of any such contest, fail promptly to cause any judgment or
decree to be satisfied and lien to be released, then Lender may, but
shall not be required to, procure the release and discharge of any such
claim and any judgment or decree thereon and, further, may, in its sole
discretion, effect any settlement or compromise of the same, or may
furnish such security or indemnity to the Title Company, and any
amounts so expended by Lender, including premiums paid or security
furnished in connection with the issuance of any surety company bonds,
shall be deemed to constitute disbursements of the proceeds of the
Loans hereunder and shall bear interest from the date so disbursed
until paid at the Default Rate. In settling, compromising or
discharging any claims for lien, Lender shall not be required to
inquire into the validity or amount of any such claim.
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7.8 Financial Statements; Reports. Borrower shall deliver or
cause to be delivered to Lender each month, a detailed report showing
the progress of the Work, the number of reservation deposits for Units
made, if any, and the number of sales contracts for Units entered into
by Borrower during the immediately preceding month, if any, and the
status of all reservation deposits and sales contracts entered into
prior thereto, if any. In addition to such progress reports and any
other financial statements required to be delivered to Lender pursuant
to the provisions of any of the other Loan Documents, Borrower will
from time to time furnish to Lender such information and reports,
financial and otherwise, concerning Borrower, Member and Heartland, the
performance of the Work and the operation of the Project as Lender
reasonably requires, including, without limitation, the following:
(a) Within ninety days after the end of each calendar
year, compiled financial statements of the Project on a form
acceptable to Lender, setting forth the information therein
required as of December 31 of the immediately preceding year,
containing income and expense statements and a balance sheet.
The financial statements shall be prepared by an independent
accounting firm in accordance with generally accepted
accounting principles consistently applied and shall be
certified by the chief financial officer of Borrower as fairly
and accurately presenting the information contained therein.
(b) Within ninety days after the end of each calendar
year, financial statements and the federal and state income
tax returns for Borrower, Member and Heartland, such financial
statements to be on Lender's standard form or another form
acceptable to Lender, setting forth the information therein
required as of December 31 of the immediately preceding year,
and certified by such Person as fairly and accurately
presenting the information contained therein.
(c) Within ninety days after the end of each calendar
year, detailed cash flow statements for the preceding calendar
year, on a form acceptable to Lender, for all income producing
properties listed on the financial statements of Borrower,
Member and Heartland, certified by the chief financial officer
of such Person, as fairly and accurately presenting the
information contained therein.
7.9 Affirmation of Representations and Warranties. Borrower
agrees that all representations and warranties of Borrower contained in
Article 6 hereof shall remain true in all material respects at all
times until the Construction Loan is repaid in full.
7.10 Title. Except for (i) the Mortgage and other security for
the Loans, (ii) the lien of general real estate taxes payment of which
is not yet due, (iii) mechanics' liens which are contested in the
manner permitted in Paragraphs 7.6 above, and (iv) any other Permitted
Exceptions, Borrower shall keep its fee simple title to the Project
free and clear of all liens, claims and encumbrances, whether senior or
junior to or at parity with the Mortgage.
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7.11 Proceedings Affecting Property. If any proceedings are
filed seeking to enjoin or otherwise prevent or declare invalid or
unlawful the construction, occupancy, use, maintenance or operation of
the Project, or any portion thereof, Borrower shall cause such
proceedings to be vigorously contested in good faith, and in the event
of an adverse ruling or decision, prosecute all allowable appeals
therefrom, and shall, without limiting the generality of the foregoing,
resist the entry or seek the stay of any temporary or permanent
injunction that may be entered, and use its best efforts to bring about
a favorable and speedy disposition of all such proceedings. All such
proceedings, including without limitation, all of Lender's costs, and
fees and disbursements of Lender's counsel in connection with any such
proceedings, whether or not Lender is a party thereto, shall be at
Borrower's expense. To the extent that Lender incurs any such expenses,
including attorneys' fees and fees and charges for court costs, bonds
and the like, Borrower shall reimburse Lender for such expenses and the
amount due Lender shall bear interest from the date so incurred by
Lender until repaid to Lender at the Default Rate and shall be payable
to Lender on demand.
7.12 Disposal and Encumbrance of Property. Except as expressly
permitted pursuant to Article 12 below, Borrower shall not, without
Lender's prior written consent, suffer, permit or enter into any
agreement for any sale, lease, transfer, or in any way encumber or
dispose of or grant or suffer any security or other assignment
(collateral or otherwise) of or in all or any portion of the Project.
Any consent given by Lender or any waiver of default under this
Section, shall not constitute a consent to, or waiver of any right,
remedy or power of Lender under any subsequent default hereunder.
7.13 Insurance. Borrower shall pay all premiums on all
insurance policies required from time to time under this Agreement, and
thirty days prior to expiration of any such policies, Borrower shall
furnish to Lender, with premiums prepaid, additional and renewal
policies in form, and with companies, coverage, deductibles and amounts
satisfactory to Lender. In the event of failure by Borrower to provide
such insurance, Lender may, but shall not be required to, place
insurance and treat the amounts expended therefor as disbursements of
Loans proceeds and such amounts from the date so expended by Lender
until repaid to Lender shall bear interest at the Default Rate.
7.14 Performance of Obligations; Notice of Default. Borrower
shall promptly and fully perform and comply in all respects with the
obligations, terms, agreements, provisions and requirements of this
Agreement and the other Loan Documents and all other documents and
instruments relating thereto and will not permit to occur any default
or breach hereunder or thereunder. Borrower shall promptly give to
Lender notice of the occurrence of any Unmatured Default or of any
event that could have a material adverse effect on any security for the
Loans or on Borrower's ability to perform its obligations under this
Agreement or any of the other Loan Documents.
7.15 Subcontracts. Borrower shall deliver to Lender a copy of
each Subcontract entered into by the Contractor within ten days of its
receipt, if at all.
29
7.16 Restrictions Affecting Borrower. Borrower covenants and
agrees that, without the prior written consent of Lender, there shall
not occur: (i) any amendment or modification of the Borrower's
operating agreement or the certificate of formation of Borrower, (ii)
the admission of any new members to Borrower. At all times prior to the
repayment of the Loans, (A) the Member shall be the sole member of
Borrower; (B) Borrower shall not make or permit any distributions of
cash flow or cash proceeds to Member or any partner, subpartner,
member, shareholder, officer, director or affiliate of Borrower or
Member and all positive cash flow from the Project shall be paid to
Lender and applied to the repayment of the Principal Balance; (C)
Borrower shall not enter into any contract or agreement for the
provision of services or otherwise with respect to the Project with any
partner, subpartner, member, shareholder, officer, director or
affiliate of any partner of Borrower or Member unless such contract or
agreement is an arms-length, market rate agreement and is cancelable
upon thirty days written notice from any owner of the Project; and (D)
neither Borrower nor Member shall be dissolved or its existence
terminated; provided, however, as long as the Letter of Credit is
surrendered to Lender and not drawn upon, Borrower shall be able to
make distributions of cash flow or cash proceeds to Member as a result
of sales of the condominiums in the Tower Residence Building located at
000 X. Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
7.17 Use of Receipts. Borrower shall cause all rents and other
income and receipts realized and received by Borrower, if any, from and
in connection with the Project to be used for the purpose of paying the
actual costs and expenses incurred by Borrower in connection with the
ownership, operation, management and repair of the Project, including
without limitation, operating expenses, real estate taxes, insurance
premiums and interest on the Loans. Borrower shall cause all sale
proceeds and other income and receipts realized and received by
Borrower, if any, from and in connection with the Project to be used
for the purpose of repaying the Loans, as more fully described in the
Mortgage Note, Section 3.3 and Section 12.2 of this Agreement.
7.18 Budget. Borrower shall not make any changes in the
expenses contained in the Budget without the prior written consent of
Lender. Borrower shall not be entitled to reallocate among line items
in the Budget without the prior written consent of Lender, which
consent shall not be unreasonably withheld if Borrower has (i) proposed
the reduction of a line item and the reallocation of the amount of such
reduction to other line items in the Budget, and (ii) provided Lender
with satisfactory evidence that the reduction of a line item is
appropriate and reasonable because the amount originally set forth with
respect thereto will not be required to complete said item.
7.19 Management and Leasing Agreements; Subordination.
Borrower shall not amend, extend, substitute or enter into any new
management or leasing agreement covering all or any portion of the
Project without Lender's prior written consent. In the event that
Lender grants such consent, Borrower shall cause the manager or leasing
broker under said agreement to enter into an agreement with Lender,
acceptable in form and substance to Lender, pursuant to which said
manager or broker subordinates its liens for unpaid fees to the liens
of the Mortgage and the other Loan Documents.
30
7.20 Additional Documents. Borrower shall not execute or
record any document pertaining to, affecting or running with all or any
portion of the Property, including, without limitation, any condominium
declaration or plat, without the prior written approval of Lender of
the form and substance of such documents, which approval shall not be
unreasonably withheld. Upon granting such approval, Lender agrees to
execute such consents and subordination agreements with respect to such
condominium documents as are acceptable to Lender in its reasonable
discretion.
7.21 Sale to Investors. Without the prior written consent of
Lender, which consent may be granted or denied at Lender's sole
discretion, Borrower shall not knowingly sell multiple Unit Interests
to investors or syndicators who are acquiring such Unit Interests with
the intent to resell them.
7.22 Condominium Act. As soon as reasonably requested by
Lender, and in any event at least thirty (30) days prior to the sale of
the first Unit Interest, Borrower shall take all necessary actions and
execute, deliver, record (except recording of such documents shall not
take place until immediately prior to such first sale) and file all
necessary documents and instruments (including, without limitation, the
condominium plats for the residential condominiums constituting part of
the Project) to cause the Property to be submitted and made subject to
the provisions of the Condominium Laws and to comply with all other
legal requirements relating to the development of the Property as a
condominium project; provided, however, that Borrower shall not take
any such action or execute, deliver, record or file any such documents
or instruments without first (a) providing Lender with written notice
of such actions and copies of such documents and instruments and (b)
obtaining Lender's written consent thereto, which consent shall not be
unreasonably withheld. Borrower shall not terminate, amend or otherwise
modify any of the Condominium Documents without Lender's prior written
consent, which consent shall not be unreasonably withheld. Upon
recordation of the plat of condominium, the condominium declaration and
the other Condominium Documents required to be recorded, Borrower shall
cause the Title Company to add to the Title Policy a Condominium
Endorsement (No. 4) in form and substance acceptable to Lender. At all
times after such recordation, Borrower shall, to the extent permitted
by the Condominium Laws and the Condominium Documents, take all actions
in its capacity as developer, declarant, manager, unit owner and
otherwise to cause the Property (including, without limitation, all
common elements) to (i) be insured, (ii) remain free and clear of all
liens and encumbrances except the Permitted Exceptions and any other
exceptions hereafter approved by Lender in writing, and (iii) be
operated in accordance with all of the requirements of this Agreement
and the other Loan Documents.
7.23 Survey. Within thirty days subsequent to the completion
of the foundation of the Building and as a condition to any subsequent
disbursement by Lender, the Survey shall be updated to show the
location of such foundation; that such foundation is within all
applicable lot, side, rear and set-back lines; and that there are no
encroachments by the improvements over easements or adjoining property.
Within thirty days subsequent to the completion of the exterior walls
and roof of the Building and as a condition to any
31
subsequent disbursement by Lender, the Survey shall be updated to show
the Building "as built" and to show the location of all utilities and
any additional easements or other matters of record affecting the
Project.
7.24 Borrower's Accounts. Borrower shall maintain the
operating, xxxxxxx money and reserve accounts for the Property with
Lender and pledge the operating and reserve accounts to Lender as
security for the Loans.
7.25 Ineligible Securities. Borrower represents and warrants
that no portion of any advance or loan made hereunder shall be used
directly or indirectly to purchase ineligible securities, as defined by
applicable regulations of the Federal Reserve Board, underwritten by
any affiliate of Banc One Corporation during the underwriting period
and for thirty (30) days thereafter.
8. LOAN EXPENSES. Borrower agrees to pay all of the Loan Expenses. Any
Loan Expenses paid by Lender shall bear interest commencing on the date demand
for repayment thereof is made by Lender until repaid to Lender at the Default
Rate and shall be paid by Borrower upon demand, or may be paid by Lender at any
time by disbursement of proceeds of the Loans. Any Loan Expenses paid by Lender
shall be reimbursed to Lender by Borrower regardless of whether there shall be
any disbursements of the Loans.
9. LENDER'S REPRESENTATIVES. Lender, at Borrower's expense, shall have
the right to engage personnel in connection with negotiation, documentation,
administration and servicing of the Construction Loan, including without
limitation, the Consultant, to (i) review and approve the Plans and
Specifications, (ii) review and approve Borrower's final construction budget,
(iii) conduct monthly inspections of the Work and report on the progress of
construction thereof, (iv) review and approve all change orders, (v) review and
approve applications for disbursements and accompanying documents, (vi) issue
reports and certificates to Lender, (vii) inspect the structural, mechanical,
electrical, plumbing, HVAC and roof systems constituting the Work, (viii)
determine whether the Work has been completed in accordance with the Plans and
Specifications, and (ix) provide other services as requested by Lender, and
Borrower shall fully cooperate with the Consultant and other personnel in all
reasonable respects in connection therewith.
10. EVENTS OF DEFAULT. The occurrence of any one or more of the
following shall constitute an "Event of Default":
(a) Failure by Borrower or any other obligor to pay on or
before the fifth day following the date when due any installment of
principal or interest or any other amount payable pursuant to the
Notes, this Agreement or any of the other Loan Documents.
(b) Failure by Borrower to promptly perform or cause to be
performed any non-monetary obligation or observe any non-monetary
condition, covenant, term, agreement or provision required to be
performed or observed by Borrower or any other obligor under this
Agreement, the Notes, the Mortgage, the Indemnity Agreement or any
32
of the other Loan Documents; provided, however, that if such failure by
its nature can be cured, then so long as the continued operation and
safety of the Project, and the priority, validity and enforceability of
the lien created by the Mortgage or any of the other Loan Documents and
the value of the Project are not imminently impaired, threatened or
jeopardized, then Borrower shall have a period (the "Cure Period") of
thirty days after written notice from Lender of any such failure of
performance or observance to cure or cause the cure of the same, and an
Event of Default shall not be deemed to exist during the Cure Period,
provided further that if Borrower commences to cure such failure during
the Cure Period and is diligently and in good faith attempting to
effect such cure, the Cure Period shall be extended until such failure
is cured, but in no event shall the Cure Period be longer than 90 days
in the aggregate. The foregoing Cure Period is intended only to apply
in circumstances not referred to in any of the other paragraphs of this
Section; Borrower's right to a grace or cure period, if any, with
respect to such other circumstances are to be governed by the
provisions of such other paragraphs.
(c) The existence of any material inaccuracy or untruth in any
representation, or warranty contained in this Agreement or any other
Loan Documents, or of any statement or certification as to facts
delivered to Lender by or on behalf of Borrower.
(d) A discontinuance of the construction of the Work for a
period of fifteen consecutive days (unless otherwise approved by
Lender), other than a discontinuance resulting from strikes, acts of
God, adverse weather conditions or other occurrences beyond the
reasonable control of Borrower (it being understood that a delay caused
by an insufficiency of funds shall not be deemed to be beyond the
control of Borrower), or any delay in the Work, regardless of cause,
the result of which may be, in Lender's sole judgment, that the Work
will not be substantially completed prior to July 31, 2000.
(e) At any time Borrower, Member or Heartland files a
voluntary petition in bankruptcy, or is adjudicated a bankrupt or
insolvent, or institutes (by petition, application, answer, consent or
otherwise) any bankruptcy, insolvency, reorganization, arrangement,
composition, readjustment, dissolution, liquidation or similar
proceedings under any present or future federal, state or other statute
or law, or admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of its creditors, or
seeks or consents to the appointment of any receiver, trustee or
similar officer for all or any substantial part of its property.
(f) The commencement of any involuntary petition in bankruptcy
against Borrower, Member or Heartland or the institution against
Borrower, Member or Heartland of any reorganization, arrangement,
composition, readjustment, dissolution, liquidation or similar
proceedings under any present or future federal, state or other statute
or law, or the appointment of a receiver, trustee or other officer for
all or any substantial part of the property of Borrower, Member or
Heartland which remains undismissed or undischarged for a period of
thirty days.
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(g) Borrower intentionally causes or knowingly permits any of
the Work to be performed in a manner which is materially contrary to
the Plans and Specifications or any provisions of this Agreement or the
other Loan Documents.
(h) Any sale, transfer, lease, assignment, conveyance,
financing, lien, encumbrance or other transaction made in violation of
this Agreement.
(i) Failure of Borrower for a period of thirty days after
Lender's demand to procure the reversal, dismissal or disposition to
Lender's satisfaction of any order enjoining or otherwise preventing or
declaring invalid or unlawful the construction, occupancy, maintenance,
operation or use of the Project, or any portion thereof, in the manner
required by the terms of this Agreement, or of any proceedings which
could or might affect the validity or priority of the lien of the
Mortgage or any of the other security for the Loans, or which could
materially affect Borrower's ability to perform its obligations under
this Agreement or the other Loan Documents, except that Borrower shall
have the right to contest by appropriate proceedings the validity of
such order if and only if Borrower shall, within thirty days after
Lender's demand aforesaid, (i) places a bond with Lender in an amount,
form, content and issued by a surety reasonably acceptable to Lender
for adequate security from such order, or, if acceptable to Lender (ii)
cause the Title Company to issue an endorsement to the Loan Policy
insuring against loss or damage on account of any such order.
(j) The attachment, seizure, levy upon or taking of possession
by any receiver, custodian or assignee for the benefit of creditors of
all or a substantial part of the property of Borrower, Member or
Heartland which is not stayed or dismissed within thirty days after the
occurrence thereof.
(k) The assignment or attempted assignment of this Agreement
by Borrower without Lender's prior written consent.
(l) The filing or threatened filing of any condemnation or
administrative proceeding or litigation against the Project or any
casualty thereto which would in any way impair the completion of the
Work prior to the applicable date required therefor or the full
utilization of the Project once completed.
(m) The filing of formal charges under any federal, state or
local law, statute or ordinance for which Borrower's forfeiture of all
or any portion of the Project is a potential penalty.
(n) The occurrence of any material default or event of default
by Borrower pursuant to the Borrower's financing agreements with Corus
Bank in connection with Borrower's construction of Phase I of Kinzie
Park located in Chicago, Illinois.
(o) The occurrence of an Event of Default under any of the
other Loan Documents.
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11. REMEDIES. Upon the occurrence of any Event of Default, Lender, in
addition to availing itself of any remedies conferred upon it at law or in
equity and by the terms of the Notes, the Mortgage and the other Loan Documents,
may pursue any one or more of the following remedies first, concurrently or
successively with each other and with any other available remedies, it being the
intent hereof that none of such remedies shall be to the exclusion of any
others:
(a) Take possession of the Project and complete the Work and
do anything necessary or desirable in Lender's sole judgment to fulfill
the obligations of Borrower hereunder, including either the right to
avail itself of and procure performance of the Construction Contract,
any Subcontracts or any other contract entered into for the performance
of all or any portion of the Work (or any substitute therefor), or to
let new or additional contracts with the same contractors or
subcontractors or others, and to employ watchmen to protect the Project
from injury. Without restricting the generality of the foregoing and
for the purposes aforesaid, Borrower hereby appoints and constitutes
Lender its lawful attorney-in-fact with full power of substitution (i)
to complete the Work in the name of Borrower; (ii) to use portions of
the Construction Loan or other funds which may be reserved, escrowed or
set aside for any purposes hereunder at any time to complete the Work;
(iii) to make changes in the Plans and Specifications which shall be
reasonably necessary or reasonably desirable to complete the Work; (iv)
to retain or employ new general contractors, subcontractors,
architects, engineers and inspectors as shall be required for such
purposes; (v) to pay, settle or compromise all existing bills and
claims, which may be liens or security interests or to avoid such bills
and claims becoming liens or security interests against the Project, or
as may be necessary or desirable for the completion of the Work or for
the clearance of title; (vi) to execute all applications and
certificates in the name of Borrower which may be required by any of
the Loan Documents; (vii) to prosecute and defend all actions or
proceedings in connection with the Work; (viii) to take such action and
require such performance as it deems necessary under any of the bonds
to be furnished pursuant to the provisions hereof and to make
settlements and compromises with the surety or sureties thereunder, and
in connection therewith, to execute instruments of release and
satisfaction; it being understood that the foregoing power of attorney
is coupled with an interest and cannot be revoked. All sums expended by
Lender pursuant to this Article 11 shall be deemed to have been paid to
Borrower and secured by the Mortgage and the other Loan Documents, and
shall bear interest at the Default Rate until repaid to Lender.
(b) Withhold further disbursements of proceeds of the
Construction Loan.
(c) Declare the unpaid indebtedness evidenced by the Notes to
be immediately due and payable.
(d) Excluding any xxxxxxx money deposits, apply the balance of
any deposits made with Lender toward the repayment of the Loans.
12. SALES OF UNIT INTERESTS; PARTIAL RELEASES.
-----------------------------------------
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12.1 Right to Sell. Borrower shall have the right to enter
into and perform sales contracts with creditworthy third party
purchasers of the Unit Interests on the form contract submitted to and
approved in writing by Lender, provided that (i) no Event of Default
then exists, (ii) the gross sales price for the Unit Interest being
sold is not less than the minimum sales price therefor contained in
Exhibit E attached hereto, and (iii) the xxxxxxx money under said
contract is being held by Lender. Borrower shall deliver to Lender a
copy of each fully signed contract within five (5) days after the full
execution and delivery thereof.
12.2 Release of Liens. Provided that all of the conditions
described in Section 12.1 above have been satisfied in form and
substance acceptable to Lender and no Event of Default then exists,
Lender will issue a partial release of lien of its Loan Documents
covering any Unit Interest upon the payment to Lender of an amount
equal to 100% of the Net Sales Proceeds payable to Borrower with
respect to the sale thereof.
13. MISCELLANEOUS.
-------------
13.1 Additional Indebtedness. If any advances or payments made
by Lender pursuant to this Agreement or any other Loan Document,
together with disbursements of the Loans, shall exceed the aggregate
face amount of the Notes, all such advances and payments shall
constitute additional indebtedness secured by the Mortgage and all
other security for the Loans, and shall bear interest at the Default
Rate from the date advanced until paid.
13.2 Additional Acts. Borrower shall, upon request, execute
and deliver such further instruments and documents and do such further
acts and things as may be reasonably required to provide to Lender the
evidence of and security for the Loans contemplated by this Agreement.
13.3 Loan Agreement Governs. In the event of any inconsistency
between any provision of this Agreement and any provision of any other
Loan Document, the provision of this Agreement shall govern; provided,
however, that the provisions of all of the Loan Documents shall be
construed as an integrated set of provisions governing the Loans and,
accordingly, shall be interpreted and construed liberally to give the
maximum validity, enforceability and effect to all of such provisions.
13.4 Additional Advances. If an Event of Default shall occur,
Lender may, but shall not be obligated to, take any and all actions to
cure such default, and all amounts expended in so doing, all Loan
Expenses and all other amounts paid or advanced by Lender pursuant to
the Loan Documents, and all other amounts advanced by Lender in
connection with the performance of the Work or preserving any security
for the Loans, shall constitute additional advances of the Construction
Loan, shall be secured by the Mortgage and all other security for the
Loans, and shall bear interest at the Default Rate from the date
advanced until paid.
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13.5 Amendment; Waiver; Approval. This Agreement shall not be
amended, modified or supplemented without the written agreement of
Borrower and Lender at the time of such amendment, modification or
supplement. No waiver of any provision of this Agreement or any of the
other Loan Documents shall be effective unless set forth in writing
signed by the party making such waiver, and any such waiver shall be
effective only to the extent therein set forth. Failure by Lender to
insist upon full and prompt performance of any provisions of this
Agreement or any of the other Loan Documents, or to take action in the
event of any breach of any such provision or upon the occurrence of any
Event of Default, shall not constitute a waiver of any rights of
Lender, and Lender may at any time thereafter exercise all available
rights and remedies with respect to such breach or Event of Default.
Receipt by Lender of any instrument or document shall not constitute or
be deemed to be an approval thereof. Any approvals required under any
of the other Loan Documents must be in writing, signed by Lender and
directed to Borrower.
13.6 Notice. All notices, communications and waivers under
this Loan Agreement shall be in writing and shall be (i) delivered in
person or (ii) mailed, postage prepaid, either by registered or
certified mail, return receipt requested, or (iii) sent by overnight
express carrier, addressed in each case as follows:
To Lender: Bank One, Illinois, NA
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
and: Bank One, Illinois, NA
000 Xxxxx Xxxxxx Xxxxx - 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxxxxx
With copy to: Schwartz, Cooper, Xxxxxxxxxxx &
Xxxxxx, Chtd.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
To Borrower: CMC Heartland Partners III, LLC
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
37
With copy to: Jenner & Block
One IBM Plaza
330 N. Wabash, 40th floor
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
or to any other address as to either of the parties hereto, as such
party shall designate in a written notice to the other party hereto.
All notices sent pursuant to the terms of this Section shall be deemed
received (i) if personally delivered, then on the date of delivery,
(ii) if sent by overnight, express carrier, then on the next Business
Day immediately following the day sent, or (iii) if sent by registered
or certified mail, then on the earlier of the third Business Day
following the day sent or when actually received.
13.7 Benefit; Assignment. The rights, powers and remedies of
Lender under this Agreement shall inure to the benefit of Lender and
its successors and assigns. The rights and obligations of Borrower
under this Agreement may not be assigned and any purported assignment
by Borrower shall be null and void.
13.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
13.9 Indemnity. Borrower agrees to indemnify, defend and hold
Lender harmless from and against any and all liabilities, obligations,
losses, damages, claims, costs and expenses (including reasonable
attorneys' fees and court costs) of whatever kind or nature which may
be imposed on, incurred by or asserted against Lender at any time which
relate to or arise from the performance of the Work, the offer for sale
or sale of any limited partnership interest or membership interest in
Borrower, the acquisition or sale or offer for sale of all or any
portion of the Property (including Unit Interests) and/or the
ownership, use, operation or maintenance of the Property, including,
without limitation, (a) any brokerage commissions or finder's fees
asserted against Lender with respect to the making of the Loans, the
acquisition of the Property or the sale of Unit Interests and (b)
claims by purchasers of Unit Interests with respect to defects in the
Property or other matters; provided, however, that the foregoing
indemnity shall not extend to any liabilities, obligations, claims,
losses, costs, damages or expenses resulting from the gross negligence
or willful misconduct of Lender.
13.10 Headings. The titles and headings of the articles,
sections and paragraphs of this Agreement have been inserted as a
matter of convenience of reference only and shall not control or affect
the meaning or construction of any of the terms or provisions of this
Agreement.
13.11 No Partnership or Joint Venture. Lender, by executing
and performing this Agreement shall not become a partner or joint
venturer with Borrower or any partner
38
of Borrower or any of their respective associates or affiliates and all
inspections of the Property herein provided for are for the sole
benefit of Lender.
13.12 Time is of the Essence. Time is of the essence of the
payment of all amounts due Lender under the Loan Documents and
performance and observance by Borrower of each covenant, agreement,
provision and term of this Agreement and the other Loan Documents.
13.13 Invalid Provisions. In the event that any provision of
this Agreement is deemed to be invalid by reason of the operation of
law, or by reason of the interpretation placed thereon by any
administrative agency or any court, Borrower and Lender shall negotiate
an equitable adjustment in the provisions of the same in order to
effect, to the maximum extent permitted by law, the purpose of this
Agreement and the validity and enforceability of the remaining
provisions, or portions or applications thereof, shall not be affected
thereby and shall remain in full force and effect.
13.14 Offset. Without limitation of any other right or remedy
of Lender hereunder or provided by law, any indebtedness relating to
the Property or its operation and now or hereafter owing to Borrower by
Lender (including, without limitation, any amounts on deposit in any
demand, time, savings, passbook or like account maintained by Borrower
with Lender) may be offset and applied by Lender hereunder, or under
the Notes, the Mortgage or any of the other Loan Documents.
13.15 Acts by Lender. Notwithstanding anything herein
contained to the contrary, Lender will not be required to make any
disbursement or perform any other act under this Agreement if, as a
result thereof, Lender will violate any law, statute, ordinance, rule,
regulation or judicial decision applicable thereto.
13.16 Binding Provisions. The covenants, warranties,
agreements, obligations, liabilities and responsibilities of Borrower
under this Agreement shall be binding upon and enforceable against
Borrower and its legal representatives, administrators, successors and
permitted assigns.
13.17 Counterparts. This Agreement may be executed in
counterparts, and all said counterparts when taken together shall
constitute one and the same Agreement.
13.18 No Third Party Beneficiary. This Agreement is only for
the benefit of the parties hereto and their permitted successors and
assigns. No other person or entity shall be entitled to rely on any
matter set forth herein without the prior written consent of such
parties.
13.19 Publicity. Subject to compliance with Applicable Laws,
Lender reserves the right to publicize the making of the Loans in any
manner it deems appropriate, including, without limitation,
advertisements in trade journals and newspapers. In addition, Borrower
agrees that Lender shall have the right to erect and maintain a sign at
39
the Project in a prominent location for the duration of the term of the
Loans stating that Lender is providing the financing for construction
of the Project. The sign shall be furnished by Lender and the sign
shall be located in a place selected by Lender, provided that such
location does not interfere with performance of the Work.
13.20 JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL
ACTIONS OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED IN THE CIRCUIT
COURT OF XXXX COUNTY, ILLINOIS, OR THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS OR, IF LENDER INITIATES SUCH ACTION,
ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS
JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMIT AND CONSENT IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN
ANY OF SUCH COURTS, AND HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS
AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREE
THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT
THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS AGREEMENT.
BORROWER WAIVES ANY CLAIM THAT CHICAGO, ILLINOIS OR THE NORTHERN
DISTRICT OF ILLINOIS IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM
BASED ON LACK OF VENUE. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT,
BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING,
BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
13.21 JURY WAIVER. LENDER AND BORROWER HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) BETWEEN OR AMONG LENDER AND BORROWER ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR
ANY RELATIONSHIP BETWEEN LENDER AND BORROWER. THIS PROVISION IS A
MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOANS DESCRIBED HEREIN AND
IN THE OTHER LOAN DOCUMENTS.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
CMC HEARTLAND PARTNERS III, BANK ONE, ILLINOIS, NA, a national
LLC, a Delaware limited liability company banking association
By:______________________________ By: ___________________________
Xxxxxxxx X. Xxxxxxx, Vice President Title: ___________________________
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Schedule of Exhibits
A - Budget
B - Legal Description
C - Permitted Exceptions
D - List of Plans and Specifications
E - Schedule of Minimum Sales Prices
EXHIBIT A
Budget
EXHIBIT B
Legal Description of the Land
EXHIBIT C
Permitted Exceptions
EXHIBIT D
List of Plans and Specifications
EXHIBIT E
Schedule of Minimum Sales Prices
