Exhibit 10.57
MODIFICATION AGREEMENT
EFFECTIVE DATE: February 23, 2002
PARTIES: "Borrower": CMC Heartland Partners III, LLC, a Delaware
limited liability company
"Bank": Bank One, Illinois, NA, a national banking
association, with its main office in Chicago, Illinois
RECITALS:
A. Bank has extended to Borrower credit (the "Loan") in the principal
amount of $3,000,000.00, pursuant to the Construction Loan Agreement dated
October 20, 1999 (the "Loan Agreement"), and evidenced by the Land Loan Mortgage
Note dated February 23, 2001 (the "Note"). The unpaid principal of the Loan as
of the Effective Date is $1,500,000.00.
B. The Loan is secured by, among other things, the Mortgage dated October
20, 1999 (the "Mortgage"), made by Borrower in favor of the Bank, recorded on
October 21, 1999, as Document Number 99992384, with the Recorder's Office of
Xxxx County, Illinois, the Assignment of Rents and Leases dated October 20, 1999
(the "Assignment"), made by Borrower in favor of the Bank, recorded on October
21, 1999, as Document Number 99992618, with the Recorder's Office of Xxxx
County, Illinois, and the Security Agreement dated October 20, 1999 (the
"Security Agreement"), made by Borrower in favor of the Bank (the agreements,
documents, and instruments securing the Loan and the Note are referred to
collectively herein as the "Security Documents").
C. Bank and Borrower have executed and delivered previously the following
agreements (the "Modifications") modifying the terms of the Loan, the Note, the
Loan Agreement, and/or the Security Documents: First Amendment of Construction
Loan Agreement, Notes and Other Loan Documents dated January, 2000; Second
Amendment of Construction Loan Agreement, Mortgage, Notes and Other Loan
Documents dated February 23, 2001, recorded on February 28, 2001, as Document
Number 0010161157, with the Recorder's Office of Xxxx County, Illinois. The
Note, the Loan Agreement, the Security Documents, any environmental indemnity
agreement, and all other agreements, documents, and instruments evidencing,
securing, or otherwise relating to the Loan, as modified by the Modifications,
are referred to collectively herein as the "Loan Documents." Hereinafter, the
terms "Note," "Loan Agreement," "Mortgage," "Assignment," "Security Agreement,"
and "Security Documents" shall mean such documents as modified by the
Modifications.
D. Borrower has requested that Bank modify the Loan and the Loan Documents
as provided in this Modification Agreement (this "Agreement"). Bank is willing
to so modify the Loan and the Loan Documents, subject to the terms and
conditions set forth herein.
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AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are
hereby mutually acknowledged, Borrower and Bank agree as follows:
1. ACCURACY OF RECITALS.
Borrower acknowledges the accuracy of the Recitals.
2. MODIFICATION OF LOAN DOCUMENTS.
2.1 The Loan Documents are modified as follows:
2.1.1 The Note and the Loan Agreement are hereby modified to
provide that interest on the Loan and the Note shall be due and
payable commencing on April 1, 2002, and continuing on the same day
of each successive month thereafter until the maturity date.
2.1.2 The Note and the Loan Agreement are hereby modified to
provide that a principal payment shall be due and payable on April
1, 2002, in the sum of $500,000.00.
2.1.3 The Note and the Loan Agreement are hereby modified to
provide that the maturity date of the Loan and the Note is changed
from February 23, 2002, to June 23, 2002. On the maturity date
Borrower shall pay to Bank the unpaid principal, accrued and unpaid
interest, and all other amounts payable by Borrower under the Loan
Documents as modified herein.
2.2 Each of the Loan Documents is modified to provide that it shall be a
default or an event of default thereunder if Borrower shall fail to comply with
any of the covenants of Borrower herein or if any representation or warranty by
Borrower herein, or by any guarantor in any related Consent and Agreement of
Guarantor, is materially incomplete, incorrect, or misleading as of the date
hereof.
2.3 Each reference in the Loan Documents to any of the Loan Documents
shall be a reference to such document as modified herein.
3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
The Loan Documents are ratified and affirmed by Borrower and shall remain in
full force and effect as modified herein. Any property or rights to or interests
in property granted as security in the Loan Documents shall remain as security
for the Loan and the obligations of Borrower in the Loan Documents.
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4. BORROWER REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Bank that:
4.1 No default or event of default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under any of the Loan
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial condition
or results from operations of Borrower or any other person whose financial
statement has been delivered to Bank in connection with the Loan from the most
recent financial statement received by Bank, and there has been no casualty,
loss or material deterioration in the condition or value of any collateral
security for the Loan.
4.3 Each of the representations and warranties in the Loan Documents is
true and accurate as if made on the date hereof.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents as modified herein.
4.5 The Loan Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.
4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Loan Documents as modified herein.
The execution and delivery of this Agreement and the performance of the Loan
Documents as modified herein have been duly authorized by all requisite action
by or on behalf of Borrower. This Agreement has been duly executed and delivered
on behalf of Borrower.
5. BORROWER COVENANTS.
Borrower covenants and agrees with Bank that:
5.1 Borrower shall execute, deliver, and provide to Bank, and shall
cause to be executed, delivered and provided to Bank, such additional
agreements, documents, instruments and resolutions as are reasonably required
at any time by Bank.
5.2 Borrower fully, finally, and forever releases and discharges Bank
and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all actions, causes of action, claims, debts,
demands, liabilities, obligations, and suits, of whatever kind or nature, in law
or equity of Borrower, whether now known or unknown to Borrower, (i) in respect
of the Loan, the Loan Documents, or the actions or omissions of Bank in respect
of the Loan or the Loan Documents and (ii) arising from events occurring prior
to or contemporaneously with the date of this Agreement.
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5.3 Contemporaneously with the execution and delivery of this Agreement,
Borrower shall pay or cause to be paid to Bank:
5.3.1 All accrued and unpaid interest under the Note and all
amounts, other than interest and principal, due and payable by Borrower
under the Loan Documents as of the Effective Date hereof.
5.3.2 All the internal and external costs and expenses incurred by
Bank in connection with this Agreement (including, without limitation,
inside and outside attorneys, appraisal, appraisal review, closing, title,
filing, and recording costs, expenses, and fees).
5.4 Contemporaneously with the execution and delivery of this Agreement,
Borrower shall furnish to Bank or cause to be furnished to Bank, in form and
substance satisfactory to Bank, the following:
a. A Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing, of even date herewith, executed by Borrower for the benefit of Bank;
b. If required by Bank, such organizational documents, resolutions and
other evidence of authority of the Borrower and of the guarantor to execute and
deliver this Agreement, the Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing, and the Consent and Agreement of Guarantor; and
c. Such other documents as the Bank may reasonably request.
6. EXECUTION AND DELIVERY OF AGREEMENT BY BANK.
Bank shall not be bound by this Agreement until (i) Bank has executed and
delivered this Agreement, (ii) Borrower has performed all of the obligations of
Borrower under this Agreement to be performed contemporaneously with the
execution and delivery of this Agreement, (iii) each guarantor, if any, of the
Loan has executed and delivered to Bank a Consent and Agreement of Guarantor,
and (iv) if required by Bank, Borrower, and any guarantors have executed and
delivered to Bank an environmental indemnity agreement.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The
Loan Documents as modified herein contain the complete understanding and
agreement of Borrower and Bank in respect of the Loan and supersede all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of the Loan Documents as modified herein may be
changed, discharged, supplemented, terminated, or waived except in a writing
signed by the parties thereto.
8. BINDING EFFECT.
The Loan Documents as modified herein shall be binding upon and shall inure to
the benefit of Borrower and Bank and their respective successors and assigns and
the executors, legal administrators, personal representatives, heirs, devisees,
and beneficiaries of Borrower, provided, however, Borrower may not assign any of
its rights or delegate any of its obligations under the Loan Documents and any
purported assignment or delegation shall be void.
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9. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Illinois, without giving effect to conflicts of law principles.
10. COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
Executed on _______________________, 2002, but with effect the Effective Date.
Bank One, Illinois, NA, a national banking
Association
By: ____________________________________________
Name: ____________________________________________
Title:____________________________________________
CMC Heartland Partners III, LLC, a Delaware limited
liability company
By: CMC Heartland Partners, a Delaware general
partnership, the Sole Member of Borrower
By: HTI Interests, LLC, a Delaware limited
liability company, the Managing Partner
By: ____________________________________
Name: ____________________________________
Title:____________________________________
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