This instrument was prepared by Exhibit 10.35
and, after recording, return to:
Schwartz, Cooper, Xxxxxxxxxxx
& Xxxxxx Chartered
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
FIRST AMENDMENT OF CONSTRUCTION
LOAN AGREEMENT, NOTE, DEED OF TRUST AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT OF CONSTRUCTION LOAN AGREEMENT, NOTE, DEED OF
TRUST AND OTHER LOAN DOCUMENTS (this "Amendment") is made as of December 8,
2000, 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 "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 "Existing Loan"). All capitalized
terms used herein and not otherwise defined shall have the meaning ascribed
thereto in the Loan Agreement.
B. The Existing Loan is evidenced by a certain Note dated December
9, 1999 (the "Existing Note") in the original principal amount of $5,000,000
made by Borrower and payable to Lender.
C. The Note is secured by, among other things, the following
documents, all of which are dated as of December 9, 1999:
(i) Deed of Trust made by Borrower to Chicago Title Insurance
Company for the benefit of Lender and recorded at Book 1576, page 93,
Xxxxx County Registry, North Carolina on December 9, 1999 (the "Deed of
Trust") creating a first mortgage lien on certain improved real estate
located in the town of Southern Pines, North Carolina;
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(ii) Assignment of Rents and Leases made by Borrower in favor of
Lender and recorded at Book 1576, page 93, Xxxxx County Registry, North
Carolina (the "Assignment of Rents"); and
(iii) Security Agreement made by the Borrower, as Debtor, to
Lender, as Secured Party.
(iv) Environmental Indemnity Agreement made by the Borrower for
the benefit of Lender.
The aforementioned documents, the Loan Agreement, the Existing Note, and all
of the other documents or agreements delivered to Lender to secure or
evidence the Existing Loan or to otherwise induce Lender to disburse the
proceeds of the Existing Loan are hereinafter referred to collectively as the
"Loan Documents".
D. Under the terms of the Loan Agreement and the Note, the Maturity
Date is December 8, 2000.
E. Pursuant to that certain Option, Management and Marketing
Agreement dated as of September 9, 1998, by and between Borrower and Longleaf
Associates Limited Partnership, a North Carolina limited partnership
("Seller")(as the same has been amended, modified or supplemented from time
to time the "Option Agreement"), Borrower has certain rights to purchase
certain real estate located in Xxxxxxx Pines, North Carolina and more
particularly described therein (the "Land") from Seller.
F. Pursuant to that certain Purchase and Sale Agreement dated as of
December __, 2000, by and between Borrower and Seller (as it is amended,
restated, modified or supplemented from time to time the "Purchase
Agreement"), Borrower is purchasing all of the remaining Land from Seller
that was subject to the Option Agreement but has not yet been conveyed to
Borrower (the "Remaining Land"). In connection therewith, Seller is
receiving a Deed of Trust (the "Seller Deed of Trust") encumbering the
Remaining Land to receive certain indemnity obligations of Borrower under the
Purchase Agreement.
G. Borrower has requested that Lender extend the Maturity Date of
the Existing Loan and extend an additional loan to Borrower to finance the
acquisition of the Remaining Land from Seller.
H. Lender is willing to extend the Maturity Date of the Existing
Loan and extend an additional loan to Borrower, 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.
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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. Maturity Date of the Existing Loan. Lender and Borrower
acknowledge and agree that the Maturity Date of the Existing Loan is hereby
extended to April 12, 2001. For all purposes under the Loan Agreement, the
Note and the other Loan Documents, the "Maturity Date" shall be deemed to
mean April 12, 2001.
3. Reduction of the maximum principal amount of the Existing Loan.
Lender and Borrower acknowledge and agree that the maximum principal amount
of the Existing Loan is hereby reduced to $3,000,000.
4. New Loan. To finance the acquisition of the Remaining Land from
Seller, Lender agrees to lend to Borrower on the Amendment Effective Date,
and Borrower agrees to borrow from Lender $250,000 (the "Acquisition Loan"),
upon the terms and subject to the conditions contained in this Amendment.
The Acquisition Loan shall accrue interest at the Loan Rate and shall be due
and payable on the Maturity Date (as redefined in Paragraph 2 above) and
shall be evidenced by the Acquisition Note (as hereinafter defined).
5. Amendment of the Deed of Trust. Lender and Borrower hereby
agree that the legal description of the premises encumbered pursuant to the
Deed of Trust be and the same hereby is amended by adding thereto the legal
description of the of the Remaining Land conveyed from Seller to Borrower and
set forth on Exhibit A attached to this Amendment; and Borrower hereby
mortgages, grants, assigns, remises, releases, warrants, bargains, sells and
conveys to Chicago Title Insurance Company, its successors, substitutes and
assigns forever in trust, with the power of sale and right of entry and
possession, as security for the Acquisition Loan and the Acquisition Note and
as additional security for the Existing Loan, on the terms, provisions and
conditions contained in the Deed of Trust.
6. Additional Collateral for the Acquisition Loan. All of the Loan
Documents securing the Existing Loan and the Existing Note shall additionally
secure the Acquisition Loan; and Borrower hereby grants to Lender as
additional security for the Acquisition Loan and the Acquisition Note, all of
the security interests granted to Lender under the Loan Documents.
7. Cross-Defaults: Integration of Loan Documents. Any Event of
Default under any of the Existing Note, the Deed of Trust or any of the other
Loan Documents shall be deemed an Event of Default under the Acquisition Note
and any Event of Default under any of the Acquisition Note, the Purchase
Agreement or the Subordinated Deed of Trust (as hereinafter defined) shall be
deemed an Event of Default under the Existing Note, the Deed of Trust and the
other Loan Documents.
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8. 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) Borrower delivers a Note in the principal amount of
$250,000 in form and substance reasonably acceptable to Lender in its
sole discretion (the "Acquisition Note") made by Borrower and payable
to Lender;
(c) Lender receives a Subordination Agreement fully executed
and delivered by Seller in form and substance reasonably acceptable to
Lender in its sole discretion which subordinates all of Seller's
remaining right, title and interest in the Remaining Land to the Deed
of Trust, as herein amended, all to all of Lender's other existing or
hereafter acquired liens on Borrower's assets, including but not
limited to the Remaining Land;
(d) Lender receives a true and correct copy of the fully
executed Purchase Agreement and all other certificates, deeds,
agreements, instruments delivered by either Borrower or Seller in
connection with Seller's sale of the remaining Land to Borrower;
(e) Lender receives a Collateral Assignment of Purchase
Agreement from Borrower and consented to by Seller to fully secure the
Existing Loan and the Acquisition Loan;
(f) Payment of the $2,500 to Lender as a loan fee for the
Acquisition Loan (the "Acquisition Loan Fee");
(g) 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 real estate described
in Schedule A to include the real property described in Exhibit A
attached hereto, (ii) amends the description of the Deed of Trust
insured under the Existing Title Policy to include this Amendment,
(iii) amends the description of the Assignment of Rents to include this
Amendment, (iv) extends the effective date of the Existing Title Policy
to the date of the recording of this Amendment, (v) 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;
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(h) 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;
(i) An opinion of counsel for Borrower in form and substance
satisfactory to Lender; and
(j) Lender has received such other documents as Lender may
reasonably require.
Borrower's failure to deliver the aforementioned documents and items to
Lender on or before December ___, 2000 shall, at the option of Lender, result
in this Amendment (including all agreements of Lender contained herein) being
null and void and of no further force and effect.
9. References. All references to the Loan Agreement, the Existing
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 and all references to the "Land", "Real Estate" and
"Premises" as the case may be shall be deemed to include the real estate
legally described on Exhibit A attached hereto.
10. Payment of Loan Fee and Additional Loan Expenses. In addition to
the Acquisition 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.
11. 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 Existing Note, or any of the other Loan
Documents. Borrower further acknowledges and agrees that an Event of Default
under the Loan Agreement, the Existing 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.
12. 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 Existing Note, the Deed of Trust or the other
Loan Documents, and no basis for any such matter exists.
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12. 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.
13. Acknowledgment by Borrower; Ratification of Liability. Borrower
hereby ratifies and confirms its liabilities and obligations under the
Existing 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.
14. 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.
15 Continued Effectiveness. Except as expressly provided herein,
the Loan Agreement, the Existing Note and the other Loan Documents shall
remain in full force and effect in accordance with their respective terms.
16 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; signatures 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, BANK ONE, ILLINOIS, N.A., 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: Heartland Technology, Inc.,
its managing partner
By:______________________________
Title:___________________________
Attest:___________________________
Title:____________________________
R:\42450\28099\Amendments\1stAmendment-v1.wpd
7
STATE OF ILLINOIS )
)SS
COUNTY OF XXXX )
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 December, 2000.
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 December, 2000.
NOTARY PUBLIC
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EXHIBIT A
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