Exhibit 10.51
This instrument was prepared by
and, after recording, return to:
Schwartz, Cooper, Xxxxxxxxxxx
& Xxxxxx Chartered
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
SECOND AMENDMENT OF CONSTRUCTION
LOAN AGREEMENT, NOTES, DEED OF TRUST AND OTHER LOAN DOCUMENTS
THIS SECOND AMENDMENT OF CONSTRUCTION LOAN AGREEMENT, NOTES, DEED OF
TRUST AND OTHER LOAN DOCUMENTS (this "Amendment") is made as of April 12,
2001, by and between CMC HEARTLAND PARTNERS VII, LLC, a Delaware limited
liability company ("Borrower") and BANK ONE, ILLINOIS, N.A., a national
banking association ("Lender").
RECITALS:
A. Pursuant to and in accordance with the terms and conditions set
forth in that certain Construction Loan Agreement dated as of December 9,
1999 by and between Borrower and Lender (the "Original Loan Agreement"),
Lender agreed to make a construction loan to Borrower in an amount not to
exceed the maximum principal sum of $5,000,000 (the "Original Loan").
B. The Original Loan Agreement has been amended by that certain
First Amendment of Construction Loan Agreement, Note, Deed of Trust and Other
Loan Documents dated as of December 8, 2000 by and between Borrower and
Lender and recorded at Book 1688, page 000, Xxxxx Xxxxxx Xxxxxxxx, Xxxxx
Xxxxxxxx on December 14, 2000 (the "First Amendment"). The First Amendment
(i) extended the "Maturity Date" of the Original Loan to Xxxxx 00, 0000, (xx)
reduced the maximum amount of the Original Loan to $3,000,000, (iii) provided
Borrower with a new $250,000 loan (the "Acquisition Loan"), (iv) added the
Remaining Land (as defined in the First Amendment) to the Deed of Trust (as
hereinafter defined), and (v) cross-defaulted and cross-collateralized the
Original Loan and the Acquisition Loan. The Original Loan Agreement as
amended by the First Amendment and hereinafter amended, restated, modified or
supplemented from time to time and in effect is hereinafter referred to as
the "Loan Agreement".
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C. The Original Loan is evidenced by a certain Note dated December
9, 1999 (the "Original Note") in the original principal amount of $5,000,000
made by Borrower and payable to Lender. The Acquisition Loan is evidenced by
a certain Note dated December 12, 2000 (the "Acquisition Note") in the
original principal amount of $250,000 made by Borrower and payable to
Lender. The Original Note and the Acquisition Note are collectively referred
to herein as the "Notes".
D. The Notes are secured by, among other things, a Deed of Trust
dated as of December 9, 1999 made by Borrower to Chicago Title Insurance
Company, as trustee, for the benefit of Lender and recorded at Book 1576,
page 93, Xxxxx County Registry, North Carolina on December 9, 1999, as
amended by the First Amendment (the "Deed of Trust") creating a first
mortgage lien on certain real estate located in the town of Southern Pines,
North Carolina and legally described on Exhibit A attached hereto.
E. The Notes are also secured by, among other things, an Assignment
of Rents and Leases made by Borrower in favor of Lender and recorded at Book
1576, page 00, Xxxxx Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, as amended by the First
Amendment (the "Assignment of Rents").
F. The Notes are further secured by certain other Loan Documents (as
that term is defined in the Loan Agreement), the provisions of which were
modified by and in accordance with the terms and conditions set forth in the
First Amendment.
G. Under the terms of the Loan Agreement, the Original Note and the
Acquisition Note, the Maturity Date for the Original Loan and the Acquisition
Loan is April 12, 2001.
H. Borrower has requested that Lender extend the Maturity Date of
the Original Loan and the Acquisition Loan.
I. Lender is willing to extend the Maturity Date of the Original
Loan and the Acquisition Loan, notwithstanding the fact that Lender has no
obligation to do so, subject to and upon the terms and conditions set forth
below in this Amendment.
NOW, THEREFORE, in order to induce Lender to agree to the foregoing,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Lender hereby agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are
incorporated herein and made a part hereof.
2. Definitions. All capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Loan Agreement.
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3. Maturity Date. Lender and Borrower acknowledge and agree that
the Maturity Date of the Original Loan and the Acquisition Loan are hereby
extended to April 12, 2002. For all purposes under the Loan Agreement, the
Original Note, the Acquisition Note and the other Loan Documents, the
"Maturity Date" shall be deemed to mean April 12, 2002.
4. Maximum Amount of the Original Loan. Notwithstanding anything to
the contrary contained in Section 3.1 of the Original Loan Agreement, for
Units which are currently under construction and financed by the Lender, the
cost of such Unit shall be deemed to include, as Borrower's acquisition cost
of the Parcel for such Unit, (a) $35,000, if such Unit is a detached single
family home, or (b) $25,000, if such Unit is an attached town home.
5. Repayment of the Acquisition Loan; Partial Releases.
Notwithstanding anything to the contrary contained in Section 12.2 of the
Original Loan Agreement, provided that all of the conditions described in
Section 12.1 of the Original Loan Agreement have been satisfied in form and
substance acceptable to Lender and no Event of Default or Unmatured Default
then exists, Lender will issue a partial release of the lien of its Loan
Documents covering any Unit upon the payment to Lender of an amount equal to
the sum of (a) the amount of the Original Loan previously disbursed by Lender
with respect to such Unit to be applied towards the Original Loan, plus (b)
$25,000 to be applied towards the Acquisition Loan.
6. Required Deliveries. This Amendment shall become effective on
the date (the "Amendment Effective Date") on which the following conditions
have been satisfied:
(a) This Amendment has been duly executed by Borrower and
delivered to Lender;
(b) Payment of the $32,500 to Lender as a loan fee for this
Amendment (the "Loan Fee");
(c) An additional endorsement to Chicago Title Insurance
Company Loan Policy No. 34 902 107 XX0000000 (the "Existing Title
Policy") which (i) amends the description of the Deed of Trust insured
under the Existing Title Policy to include this Amendment, (ii) amends
the description of the Assignment of Rents to include this Amendment,
(iii) extends the effective date of the Existing Title Policy to the
date of the recording of this Amendment, (iv) includes no additional
exceptions to title other than those that have been approved in writing
by Lender and (v) states that all real estate taxes and assessments
applicable to the Land which are due and payable as of the date of such
endorsement have been paid in full;
(d) A certified copy of Resolutions of Borrower and the general
partner of Borrower evidencing the authority of Borrower and said
general partner to execute and deliver this Amendment and the
Acquisition Note has been delivered to Lender; and
(e) Lender has received such other documents as Lender may
reasonably require.
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7. References. All references to the Loan Agreement, the Original
Note, the Acquisition Note, the Deed of Trust and the other Loan Documents
contained in any of the Loan Documents shall be deemed to refer to each of
such documents as amended by this Amendment.
8. Payment of Loan Fee and Additional Loan Expenses. In addition to
the Loan Fee, Borrower hereby agrees to pay all of Lender's reasonable
attorneys' fees incurred in connection with the negotiation and documentation
of the agreements contained in this Amendment, all recording fees and
charges, title insurance charges and premiums and all other expenses,
charges, costs and fees referred to in, necessitated by or otherwise relating
to this Amendment (collectively, the "Additional Loan Expenses"). If the
Additional Loan Expenses are not paid to Lender within five days after
written demand therefor by Lender, the Additional Loan Expenses shall bear
interest from the date so incurred until paid at an annual rate equal to the
Default Rate.
9. Defaults. Borrower represents and warrants that, as of the date
hereof no Event of Default or event or condition which could become an Event
of Default with the giving of notice or passage of time, or both, exists
under the Loan Agreement, the Original Note, the Acquisition Note, or any of
the other Loan Documents. Borrower further acknowledges and agrees that an
Event of Default under the Loan Agreement, the Original Note, the Acquisition
Note and the other Loan Documents shall be deemed to exist upon the
occurrence of a breach of any of the representations, warranties or covenants
set forth in this Amendment.
10. No Defenses. Borrower represents and warrants there is not any
condition, event or circumstance existing, or any litigation, arbitration,
governmental or administrative proceedings, actions, examinations, claims or
demands pending or threatened affecting Borrower or the Property, or which
would prevent the Borrower from complying with or performing its obligations
under the Loan Agreement, the Original Note, the Acquisition Note, the Deed
of Trust or the other Loan Documents, and no basis for any such matter exists.
11. Authority to Execute Amendment; No Conflict. Borrower represents
and warrants that it has full power and authority to execute and deliver this
Amendment and to perform its obligations hereunder. Upon the execution and
delivery hereof, this Amendment will be valid, binding and enforceable upon
Borrower in accordance with its terms. Execution and delivery of this
Amendment does not and will not contravene, conflict with, violate or
constitute a default under any applicable law, rule, regulation, judgment,
decree or order or any agreement, indenture or instrument to which Borrower
is a party or is bound.
12. Acknowledgment by Borrower; Ratification of Liability. Borrower
hereby ratifies and confirms its liabilities and obligations under the
Original Note, the Acquisition Note, the Deed of Trust and the other Loan
Documents and the liens and security interests created thereby, and
acknowledges that it has no defenses, claims or set-offs to the enforcement
by Lender of its obligations and liabilities thereunder.
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13. Amendment Binding. This Amendment shall be binding on the
Borrower and its successors and permitted assigns, and shall inure to the
benefit of Lender and its successors and assigns.
14 Continued Effectiveness. Except as expressly provided herein,
the Loan Agreement, the Original Note, the Acquisition Note and the other
Loan Documents shall remain in full force and effect in accordance with their
respective terms.
15 Counterparts. This Amendment may be executed in counterparts,
and all said counterparts when taken together shall constitute one and the
same Amendment.
IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first above written.
CMC HEARTLAND PARTNERS VII, LLC, a BANK ONE, ILLINOIS, N.A., a
Delaware limited liability company national banking association
By: CMC Heartland Partners, a
Delaware general partnership, By: _______________________________
the sole member of Borrower. Title: ____________________________
By: _____________________________
Title: __________________________
Attest: _________________________
Title: __________________________
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STATE OF )
) SS.
COUNTY OF )
I, _______________________, a Notary Public in and for said County, in
the State aforesaid, do hereby certify that Xxxxxx Xxxxxxx is personally
known to me to be the same person whose name is subscribed to the foregoing
instrument as such Vice President, of Bank One, Illinois, NA, a national
banking association (the "Bank"), appeared before me this day in person and
severally acknowledged that he signed and delivered the said instrument as
his own free and voluntary act, and as the free and voluntary act of the Bank
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of May, 2001.
_____________
NOTARY PUBLIC
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I,____________, a Notary Public in and for said
County, in the State aforesaid, do hereby certify that Xxxxxxx Xxxxxxxxxxxx,
the ___________of Heartland Technology, Inc., the managing partner
of CMC Heartland Partners which is the sole member of CMC Heartland Partners
VII, LLC, and ____________, the ____________ thereof, who are personally
known to me to be the same persons whose name are subscribed to the foregoing
instrument as such ___________and ___________, respectively, appeared
before me this day in person and acknowledged that they signed and delivered
the said instrument as their own free and voluntary act and as the free and
voluntary act of said limited liability company, for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal, this ____ day of May, 2001.
_____________
NOTARY PUBLIC
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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SECOND AMENDMENT OF CONSTRUCTION
LOAN AGREEMENT, NOTE, DEED OF TRUST
AND OTHER LOAN DOCUMENTS
by and between
CMC HEARTLAND PARTNERS VII, LLC
and
BANK ONE, ILLINOIS, NA
This instrument was prepared by
and, after recording, return to:
Schwartz, Cooper, Xxxxxxxxxxx
& Xxxxxx Chartered
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
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