EXHIBIT 10.58
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.
THIRD AMENDMENT OF CONSTRUCTION
LOAN AGREEMENT, NOTES, DEED OF TRUST AND OTHER LOAN DOCUMENTS
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THIS THIRD AMENDMENT OF CONSTRUCTION LOAN AGREEMENT, NOTES, DEED OF TRUST
AND OTHER LOAN DOCUMENTS (this "Amendment") is made as of April 12, 2002, 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") and that certain Second Amendment of
Construction Loan Agreement, Notes, Deed of Trust and Other Loan Documents dated
as of April 12, 2001 by and between Borrower and Lender and recorded at Book
1771, page 376-392, Xxxxx County Registry, North Carolina on June 8, 2001 (the
"Second 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 Second Amendment further extended the "Maturity Date" of the Original
Loan and the Acquisition Loan to April 12, 2002. The Original Loan Agreement as
amended by the First Amendment, the Second 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 as each have been amended by the First Amendment and the
Second Amendment 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 and Second 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 93, Xxxxx County Registry, North Carolina, on December 9, 1999, as amended
by the First Amendment and the Second 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
and Second Amendment.
G. Under the terms of the Loan Agreement and the Notes, the Maturity
Date for the Original Loan and the Acquisition Loan is April 12, 2002.
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.
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, 2003. 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, 2003.
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4. Loan Disbursements. Borrower hereby acknowledges and agrees that as of
the date hereof, the outstanding principal balance of the Original Loan is
$1,110,467.16 and that Borrower may continue to borrow the remaining undisbursed
portion of the Original Loan in accordance with the terms and conditions set
forth in the Loan Agreement. Borrower hereby acknowledges and agrees that as of
the date hereof, the outstanding principal balance of the Acquisition Loan is
$100,000 and that Borrower may not reborrow any amounts that have been repaid.
5. Repayment of the Original Loan. Notwithstanding anything to the
contrary contained in Section 3.3(c) of the Original Loan Agreement, Borrower
must make a mandatory principal payment with respect to the Original Loan equal
to (a) 5% of the aggregate amount of the Original Loan that was previously
disbursed with respect to each Spec Unit twelve months after the date on which
the first draw proceeds of the Orginal Loan for such Spec Unit was made, (b) an
additional 5% of the aggregate amount of the Original Loan that was previously
disbursed with respect to each Spec Unit eighteen months after the date on which
the first draw proceeds of the Original Loan for such Spec Unit was made, and
(c) the remaining aggregate unpaid amount of the Original Loan that was
disbursed with respect to each Spec Unit twenty-four months after the date on
which the first draw proceeds of the Original Loan for such Spec Unit was made.
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 $31,000 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; and
(d) Lender has received such other documents as Lender may
reasonably require.
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.
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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.
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.
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15. Counterparts. This Amendment may be executed in counterparts,
and all said counterparts when taken together shall constitute one and the
same Amendment.
[remainder of page intentionally blank; signature page to follow]
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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 national
Delaware limited liability company banking association
By: CMC Heartland Partners, a Delaware
general partnership, the sole By: _______________________________
member of Borrower. Title: ____________________________
By: HTI Interests, LLC, a Delaware
limited liability company as its
managing partner
By: ______________________
Title: _____________________
Attest: ____________________
Title: _____________________
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STATE OF )
)SS
COUNTY OF )
I, _______________________, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Xxxxxx 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, 2002.
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 _______________, the ______________
of HTI Interests, LLC, 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, 2002.
_____________
NOTARY PUBLIC
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EXHIBIT A
8
THIRD 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
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