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This instrument was prepared by Exhibit 10.34
and, after recording, return to:
Schwartz, Cooper, Greenberger
& Krauss Chartered
180 North LaSalle Street
Suite 2700
Chicago, Illinois 60601
Attn: Gary P. Segal, Esq.
SECOND AMENDMENT OF MORTGAGE
and
AMENDMENT TO LOAN AGREEMENT, NOTE AND OTHER LOAN DOCUMENTS
THIS SECOND AMENDMENT OF MORTGAGE AND AMENDMENT TO LOAN AGREEMENT, NOTE
AND OTHER LOAN DOCUMENTS ("Amendment") is dated as of December 1, 2000, by
and between CMC HEARTLAND PARTNERS I, LIMITED PARTNERSHIP, a Delaware limited
partnership ("Borrower"), and BANK ONE, ILLINOIS, NA, a national banking
association ("Lender").
RECITALS:
A. Lender has previously made a term loan to Borrower in the
principal amount of $2,500,000 (the "Term Loan") pursuant to and in
accordance with that certain Loan Agreement, as amended from time to time
(the "Term Loan Agreement"), dated as of November 30, 1998, by and between
Borrower and Lender. The Term Loan is evidenced by a certain Promissory Note
dated as of November 30, 1998 (the "Term Note"), made by Borrower in the
original principal amount of $2,500,000 and payable to Lender.
B. Lender has previously made (i) a revolving line of credit (the
"Revolving Loan") in the maximum outstanding principal amount of $4,000,000,
and (ii) a $1,750,000 construction loan (the "Development Loan") pursuant to
and in accordance with that certain Construction Loan Agreement (as amended,
restated, supplemented or modified and in effect from time to time, the
"Construction Loan Agreement"), dated as of February 1, 1999. All
capitalized terms which are not defined herein shall have the meaning
ascribed thereto in the Term Loan Agreement.
C. The Term Loan, Revolving Loan and Development Loan are secured
by, among other things, the following documents:
(i) Mortgage (the "Mortgage") made by Borrower to Lender,
dated as of November 30, 1998 and recorded in the Dakota County
Recorder's Office on December 7, 1998, as Document No. 1556095
creating a first mortgage lien on certain unimproved real estate
located in Rosemount, Dakota County, Minnesota, and legally described
in Exhibit A thereto;
(ii) Assignment of Rents and Leases (the "Assignment of Rents")
made by the Borrower to Lender, dated as of November 30, 1998 and
recorded in the Dakota County Recorder's Office on December 7, 1998, as
Document No. 1556096;
(iii) Security Agreement (the "Security Agreement") made by
Borrower, as Debtor, to Lender, as Secured Party, dated as of November
30, 1998; and
(iv) Environmental Indemnity Agreement (the "Indemnity
Agreement") made by Borrower to Lender, dated as of November 30, 1998.
The Mortgage, the Assignment of Rents, Security Agreement and the Indemnity
Agreement are hereafter referred to collectively as the "Loan Security
Documents".
D. The Loan Documents were amended by that certain First Amendment
of Mortgage and Other Loan Documents (the "First Mortgage Amendment") dated
as of February 1, 1999 by and between Borrower and Lender and recorded in the
Dakota County Recorder's Office on March 8, 1999, as Document No. 1586096
creating a first mortgage lien on certain unimproved real estate located in
Rosemount, Dakota County, Minnesota, and legally described in Exhibit B
thereto. The Loan Security Documents as amended by the First Mortgage
Amendment, the Term Loan Agreement, the Term Note and all of the other
documents or agreements delivered to Lender to secure or evidence the Term
Loan, the Revolving Loan, the Development Loan or to otherwise induce Lender
to disburse the proceeds of the Term Loan, the Revolving Loan or the
Development Loan are hereinafter referred to collectively as the "Loan
Documents".
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E. The Revolving Loan and the Development Loan have been paid in
full to Lender.
F. Under the terms of the Term Loan Agreement and the Term Note, the
Maturity Date is December 1, 2000.
G. Borrower has requested that Lender extend the Maturity Date of
the Term Loan.
H. Lender is willing to extend the Maturity Date of the Term 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, 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
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incorporated herein and made a part hereof.
2. Maturity Date of the Term Loan. Lender and Borrower acknowledge
and agree that the Maturity Date of the Term Loan is hereby extended to April
1, 2001. For all purposes under the Term Loan Agreement, the Term Note and
the other Loan Documents, the "Maturity Date" shall be deemed to mean April
1, 2001.
3. Loan Disbursements; Loan. Borrower hereby acknowledges and
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agrees that as of the date hereof, the outstanding Principal Balance of the
Term Loan is $449,988.
4. Mortgaged Property. Lender and Borrower hereby agree that the
legal description of the remaining real estate encumbered by the Mortgage as
amended by the First Mortgage Amendment and this Amendment (after taking into
account the partial releases delivered by Lender) as security for the
remaining portion of the Term Loan and all other obligations of the Borrower
to Lender is set forth on Exhibit A attached hereto.
5. Conditions to Effectiveness. This Amendment shall become
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effective on the date (the "Amendment Effective Date") on which the following
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conditions precedent have been satisfied or waived in writing:
(a) Borrower and Lender shall have each executed and delivered
this Amendment to Lender;
(b) Lender shall have received a certificate signed by an
authorized officer of Borrower, dated as the Amendment Effective Date,
certifying the incumbency of Borrower's officers and copies of
resolutions of the board of directors of Borrower approving and
authorizing the execution, delivery and performance of Borrower of this
Amendment; and
(c) An additional endorsement to Commonwealth Land Title
Insurance Company Loan Policy No. 46813C (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 Mortgage and the First
Mortgage Amendment insured under the Existing Title Policy 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 real property which are due and payable
as of the date of such endorsement have been paid in full.
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6. Representation and Warranties. To induce Lender to enter into
-----------------------------
this Amendment, Borrower hereby represents and warrants to Lender as of the
Amendment Effective Date that:
(a) Since February 1, 1999, there has been no development or
event, which has had or could reasonably be expected to have a material
adverse effect on the business, property, condition (financial or
other), results of operations or prospects of Borrower, or the validity
or enforceability of any of the Loan Documents or the rights or
remedies of Lender thereunder. No Unmatured Default or Event of
Default has occurred and will be continuing on the Amendment Effective
Date after giving effect to this Amendment.
(b) Borrower has the power and authority, and the legal right,
to make and deliver this Amendment and to perform all of its
obligations under the Loan Agreement, as amended by this Amendment, the
Loan Documents, and has taken all necessary action to authorize the
execution and delivery of this Amendment and the performance of the
Loan Documents, as so amended.
(c) When executed and delivered, this Amendment and the Loan
Agreement, as amended by this Amendment, will constitute legal, valid
and binding obligations of Borrower, enforceable against it, in
accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement of creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(d) The representations and warranties made by the Borrower in
the Loan Agreement are true and correct in all material respects on
and as of the Amendment Effective Date, before and after giving effect
to the effectiveness of this Amendment, as if made on and as of the
Amendment Effective Date, other than those that relate to an earlier or
specific date.
7. References. All references to the Term Loan Agreement, the Term
Note, the Mortgage and amended by the First Mortgage Amendment 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 Expenses. 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 "Loan Expenses"). If
the Loan Expenses are not paid to Lender within five days after written
demand therefor by Lender, the Loan Expenses shall bear interest from the
date so incurred until paid at an annual rate equal to the Default Rate.
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9. Amendment Binding. This Amendment shall be binding on Borrower
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and its successors and permitted assigns, and shall inure to the benefit of
Lender and its successors and assigns.
10. Continued Effectiveness. Except as expressly provided herein,
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the Loan Documents and the shall remain in full force and effect in
accordance with their respective terms.
11. Governing Law. The validity and interpretation of this Amendment
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shall be construed in accordance with the laws and decisions of the State of
Illinois.
12. Invalidity of Provisions. If any provision of this Amendment
shall be prohibited by or be invalid under applicable law, such provision
shall be deemed ineffective to the extent of such prohibition or invalidity,
without invalidating the remained of such provisions or the remaining
provisions of this Amendment.
13. Counterparts. This Amendment may be executed in counterparts,
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and all said counterparts when taken together shall constitute one and the
same Amendment.
14. Headings. The titles and headings of the articles, sections and
--------
paragraphs of this Amendment have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Amendment.
[remainder of page intentionally blank; signature page follows]
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IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first above written.
CMC HEARTLAND PARTNERS I, LIMITED PARTNERSHIP, a Delaware limited partnership
By: Heartland Development Corporation, a Delaware corporation
By: ______________________________
Title:______________________________
BANK ONE, ILLINOIS, NA, a national banking association
By: ______________________________
Title:______________________________
This instrument was prepared by and, after recording, return to:
Schwartz, Cooper, Greenberger & Krauss
180 North LaSalle Street, Suite 2700
Chicago, Illinois 60601
Attn: Gary P. Segal, Esq.
R:\42450\34098 (CMC Heartland)\2ndAmend Mortgage-v1.wpd
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EXHIBIT A
LEGAL DESCRIPTION
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