NOTE Exhibit 10.36
$250,000 December 12, 2000
Chicago, Illinois
1. AMOUNT OF NOTE. FOR VALUE RECEIVED, CMC HEARTLAND PARTNERS VII,
LLC, a Delaware limited liability company ("Borrower"), hereby promises to
pay to the order of BANK ONE, ILLINOIS, NA, a national banking association
("Lender"), the principal sum of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000), at the place and in the manner hereinafter provided, together
with interest thereon at the rates described below. All capitalized terms
which are not defined herein shall have the meanings ascribed thereto in that
certain Construction Loan Agreement, as amended by that certain First
Amendment of Construction Loan Agreement, Note, Deed of Trust and other Loan
Documents dated as of the date hereof (collectively, the "Loan Agreement") by
and between Borrower and Lender. This Note evidences the Acquisition Loan
referred to in the Loan Agreement.
2. CALCULATION OF INTEREST. Interest shall accrue on the balance of
principal remaining from time to time unpaid under this Note during each
calendar month (whether full or partial) prior to April [12], 2001 (the
"Maturity Date") at the Loan Rate (as such date may be extended pursuant to
the Loan Agreement). Interest shall be computed on the basis of a year
consisting of 360 days and shall be based on the actual number of days during
the period for which interest is being charged.
3. PAYMENTS OF INTEREST AND PRINCIPAL. Payments of principal and
interest due under this Note, if not sooner declared to be due in accordance
with the provisions hereof, shall be made as follows:
(a) Commencing on the first Business Day of January 2001 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 of the Loan shall be
due and payable; and
(b) The principal balance of the Loan, if not sooner declared
to be due in accordance with the terms hereof or the Loan Agreement,
together with all accrued and unpaid interest thereon, shall be due and
payable in full on the Maturity Date.
4. DEFAULT RATE. After the Maturity Date, or during any period in
which an Event of Default (as hereinafter defined) exists under this Note,
the Loan Agreement or any of the other Loan Documents, Borrower shall pay
interest on the balance of principal remaining unpaid during any such period
at the Default Rate. The interest accruing under this paragraph shall be
immediately due and payable by Borrower to the holder of this Note on demand
and shall be additional indebtedness evidenced by this Note.
1
5. LATE CHARGE. In the event any payment of interest or principal
due hereunder is not made within ten days after such payment is due in
accordance with the terms hereof, 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,
up to the maximum amount of $1,500.00 per late charge to compensate Lender
for the cost of collecting and handling such late payment. Xxxxxxxx agrees
that the damages to be sustained by the holder hereof for the detriment
caused by any late payment is extremely difficult and impractical to
ascertain, and that the amount of such late charge is a reasonable estimate
of such damages, does not constitute interest, and is not a penalty.
6. PREPAYMENT. Borrower reserves the privilege, without cost or
penalty, to prepay all or any part of the principal balance of this Note at
any time and from time to time upon five days prior written notice to Lender
of its intention to do so.
7. APPLICATION. All payments and prepayments on account of the
indebtedness evidenced by this Note shall be first applied to accrued and
unpaid interest on the unpaid principal balance of this Note, second, to all
other sums (other than principal) then due Lender under the Loan Agreement,
and the remainder, if any, to the unpaid principal balance of this Note. Any
prepayment on account of the indebtedness evidenced by this Note shall not
extend or postpone the due date.
8. METHOD OF PAYMENTS. All payments of principal and interest
hereunder shall be paid by check or in coin or currency which, at the time or
times of payment, is the legal tender for public and private debts in the
United States of America and shall be made at such place as Lender or the
legal holder or holders of this Note may from time to time appoint, and in
the absence of such appointment, then to Lender, c/o Bank One, Illinois, NA,
000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. Payment made by check shall
be deemed paid on the date Lender receives such check; provided, however,
that if such check is subsequently returned to Lender unpaid due to
insufficient funds or otherwise, the payment shall not be deemed to have been
made and shall continue to bear interest until collected. If payment
hereunder becomes due and payable on a Saturday, Sunday or legal holiday
under the laws of the State of Illinois, the due date thereof shall be
extended to the next succeeding business day, and interest shall be payable
thereon at the then applicable interest rate during such extension.
9. LOAN DOCUMENTS. This Note is secured by the Loan Documents.
Reference is hereby made to the Loan Documents (which are incorporated herein
by reference as fully and with the same effect as if set forth herein at
length) for a statement of the covenants and agreements contained therein, a
statement of the rights, remedies, and security afforded thereby, and all
matters therein contained.
2
10. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an "Event of Default" under this Note:
(a) the failure by Borrower to make payment of any installment
of principal and interest or any other amount due to Lender under this
Note, the Loan Agreement or the other Loan Documents on or before the
date that is five days after the date when any such payment is due in
accordance with the terms hereof or thereof; or
(b) the occurrence of any one or more of the "Events of
Default" under the Loan Agreement.
11. REMEDIES. At the election of the holder hereof, and without
notice, the principal balance remaining unpaid under this Note, and all
unpaid interest accrued thereon, shall be and become immediately due and
payable in full upon the occurrence of any Event of Default under this Note.
Failure to exercise this option shall not constitute a waiver of the right to
exercise same in the event of any subsequent Event of Default. No holder
hereof shall, by any act of omission or commission, be deemed to waive any of
its rights, remedies or powers hereunder or otherwise unless such waiver is
in writing and signed by the holder hereof, and then only to the extent
specifically set forth therein. The rights, remedies and powers of the
holder hereof, as provided in this Note, the Mortgage, the Loan Agreement and
the other Loan Documents are cumulative and concurrent, and may be pursued
singly, successively or together against Borrower and any other security
given at any time to secure the repayment hereof, all at the sole discretion
of the holder hereof. If any suit or action is instituted or attorneys are
employed to collect this Note or any part thereof, Xxxxxxxx promises and
agrees to pay all costs of collection, including reasonable attorneys' fees
and court costs.
12. WAIVERS. Borrower hereby (i) waives presentment and demand for
payment, notices of nonpayment and of dishonor, protest of dishonor, and
notice of protest; and (ii) waives any and all lack of diligence and delays
in the enforcement of the payment hereof.
13. BUSINESS LOAN. The Loan is a business loan which comes within
the purview of Section 205/4, paragraph (1)(c) of Chapter 815 of the Illinois
Compiled Statutes, as amended. Xxxxxxxx agrees that the obligation evidenced
by this Note is an exempted transaction under the Truth In Lending Act, 15
U.S.C., Section 1601, et seq.
14. TIME IS OF THE ESSENCE. Time is of the essence hereof.
3
15. GOVERNING LAW. This Note is governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the statutes, laws and decisions of the State of Illinois. This
Note may not be changed or amended orally but only by an instrument in
writing signed by the party against whom enforcement of the change or
amendment is sought.
16. DELIVERY OF NOTE. This Note has been made and delivered at
Chicago, Illinois and all funds disbursed to or for the benefit of Borrower
will be disbursed in Chicago, Illinois.
17. BINDING OBLIGATIONS. The obligations and liabilities of Borrower
under this Note shall be binding upon and enforceable against Borrower and
its successors and assigns. This Note shall inure to the benefit of and may
be enforced by Xxxxxx, its successors and assigns.
18. SEVERABILITY. In the event one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Note, and this Note shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. Lender
shall not collect a rate of interest on the principal balance under this Note
in excess of the maximum contract rate of interest permitted by applicable
law. All interest found in excess of that rate of interest allowed and
collected by Xxxxxx shall be applied to the principal balance in such manner
as to prevent the payment and collection of interest in excess of the rate
permitted by applicable law.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the day and
year first written above.
CMC HEARTLAND PARTNERS VII, LLC, a Delaware
limited liability company
By: CMC Heartland Partners, a Delaware
general partnership, the sole member of
Borrower
By: ____________________________
Its: ____________________________
R:\42450\28099\Amendments\Note-v1.wpd
4
