Exhibit 10.62
LOAN AGREEMENT
BETWEEN
CMC HEARTLAND PARTNERS IV, LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
AS BORROWER,
and
BANK ONE, ILLINOIS, NA, A NATIONAL BANKING ASSOCIATION,
AS LENDER
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LOAN AGREEMENT
This Loan Agreement ("Agreement") is dated as of August ___, 2002 by
and between CMC HEARTLAND PARTNERS IV, LLC, a Delaware limited liability company
("Borrower") and BANK ONE, ILLINOIS, NA, a national banking association
("Lender").
1. RECITALS.
1.1 Borrower has requested that the Lender make a loan to Borrower in
the principal amount of $4,000,000 to pay for certain soft costs
associated with the Property (as defined below). Lender has agreed to
make said loan subject to the terms and conditions set forth herein.
1.2 In consideration of the mutual agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Lender agrees as follows:
2. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
2.1 "Closing Agenda" shall mean the closing agenda attached hereto as
Exhibit C.
2.2 "Closing Date" shall mean the date the Loan is disbursed by
Lender.
2.3 "Contracts" shall mean the service contracts and agreements
listed on Exhibit D attached hereto.
2.4 "Guarantor" shall mean Heartland Partners, L.P., a Delaware
limited partnership.
2.5 "Guaranty" shall mean that certain Guaranty of even date herewith
made by the Guarantor to Lender, as the same may be hereafter amended,
restated, supplemented or otherwise modified from time to time.
2.6 "Land" shall mean the property consisting of vacant land
located in Fife, Washington, and legally described on Exhibit A
attached hereto.
2.7 "Loan" shall mean the loan from Lender to Borrower in an amount
equal to $4,000,000 which is to be disbursed pursuant to this Agreement
and which loan shall otherwise be governed by the provisions hereof.
2.8 "Loan Documents" shall mean (a)this Agreement, (b)the Note, (c)a
Deed of Trust, Security Agreement and Fixture Filing of even date
herewith made by Borrower encumbering the real estate described in
Exhibit A attached hereto, together with all improvements thereon, (d)
an Assignment of Rents and Leases of even date herewith made by
Borrower, (e) a Holdback Agreement of even date herewith made by the
Borrower and Lender, (f) a Guaranty of even date herewith made by the
Guarantor, (g) an Environmental Indemnity Agreement of even date
herewith made by the Indemnitors named therein, and (h) all of the
other documents in favor or for the benefit of Lender which evidence,
secure or are otherwise executed in connection with the Loan as each
may be amended, restated, supplemented or modified from time to time
and in effect.
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2.9 "Loan Expenses" shall mean the expenses, charges, costs and fees
relating to the making, administration, negotiation, documentation or
any other aspect of the Loan, including, without limitation, the
reasonable attorneys' fees and costs of Lender in connection with the
negotiation, documentation and enforcement of the Loan, all recording
fees and charges, title insurance charges and premiums, escrow fees,
fees of insurance consultants, costs of appraisals, surveys and of
other bonds required by the Title Company in connection with clearing
title to the Real Property or the issuance of title reports, binders,
policies and the like, and all other costs, expenses, charges and fees
referred to in or necessitated by the terms of this Agreement or any of
the other Loan Documents.
2.10 "Maturity Date" shall mean May 1, 2003.
2.11 "Mortgage" shall mean the Deed of Trust, Security Agreement and
Fixture Filing of even date herewith encumbering the Real Property to
be made by Borrower to Lender to secure the Loan, as the same may be
hereafter amended or otherwise modified from time to time.
2.12 "Note" shall mean the $4,000,000 Note made by Borrower payable to
the order of Bank One, Illinois, NA, as the same may be hereafter
assigned, amended, restated, supplemented or otherwise modified from
time to time.
2.13 "Obligors" shall mean Borrower and the Guarantor.
2.14 "Permitted Exceptions" shall mean the exceptions to the title of
the Real Property listed on Exhibit B attached hereto.
2.15 "Person" shall mean any individual, firm, corporation, business
enterprise, trust, association, joint venture, partnership,
governmental body or other entity, whether acting in an individual,
fiduciary or other capacity.
2.16 "Property" shall mean the Real Property and all other tangible and
intangible assets benefiting or otherwise appertaining to the Real
Property, including, without limitation, all of the collateral for the
Loan described in the Loan Documents.
2.17 "Real Property" shall mean the Land, all buildings and other
structures, all paving, lighting, landscaping, utility lines and
equipment and all other site improvements and all other improvements on
the Land or hereafter constructed thereon and all easements and
appurtenants thereto.
2.18 "Title Company" shall mean Chicago Title Insurance Company.
2.19 "Title Policy" shall mean an ALTA Loan Policy of Title Insurance
issued by the Title Company in the amount of $4,000,000 insuring that
the Mortgage will be a first priority lien upon the fee simple title
to the Real Property, subject to no liens, claims, exceptions or
encumbrances except the Permitted Exceptions.
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3. THE LOAN and FEES.
3.1 Loan Amount. Lender agrees to lend to Borrower, and Borrower may
borrow from Lender the principal amount of $4,000,000 for the purpose
of paying for (and reimbursement of) certain soft costs and site work
associated with the Property. The Loan is not a revolving credit
facility and, accordingly, any portion of the principal balance that is
repaid or prepaid may not be reborrowed.
3.2 Loan Evidenced by Note. The Loan shall be evidenced by the Note,
which shall be executed and delivered by Borrower simultaneously
with the execution of this Agreement.
3.3 Calculation of Interest. Interest shall accrue on the unpaid
principal balance of the Loan at the rate or rates set forth
in the Note.
3.4 Payments of Interest and Principal. Payments of principal and
interest shall be due and payable to Lender pursuant to the
terms of the Note.
3.5 Default Rate. Interest shall accrue on the unpaid principal
balance of the Loan at the Default Rate (as such term is
defined in the Note).
3.6 Late Charge. If any payment of interest or principal due under the
Note is not made within ten days after such payment is due, then, in
addition to the payment of the amount so due, Borrower shall pay to
Lender a "late charge" equal to five percent (5.0%) of the amount of
that payment or $25.00, whichever is greater, up to the maximum amount
of $1,500.00 per late charge to compensate Lender for the cost of
collecting and handling such late payment. This late charge may be
assessed without notice, shall be immediately due and payable and shall
be in addition to all other rights and remedies available to Lender.
3.7 Fees. On the Closing Date, Lender shall have fully earned a
non-refundable loan fee in the aggregate amount of $20,000, and on the
Closing Date, the unpaid balance of such fee shall be due and payable
by Borrower to Lender.
4. LOAN DOCUMENTS. Prior to the Closing Date, Borrower shall execute
and/or deliver to Lender the documents and other items indicated on the
Closing Agenda that are required to be executed and/or delivered by
Borrower, and shall cause to be executed and/or delivered to Lender the
documents and other items indicated on the Closing Agenda that are required
to be executed and/or delivered by others, all of which documents and other
items shall be satisfactory in form and substance to Lender.
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5. CONDITIONS PRECEDENT TO DISBURSEMENT. In addition to the other
conditions set forth herein or the other Loan Documents, the obligation of
Lender to make the disbursement of the Loan under this Agreement shall be
conditioned upon and subject to satisfaction of all of the following
conditions:
5.1 All representations and warranties contained in this Agreement
and in the other Loan Documents shall be true in all material
respects on and as of the Closing Date.
5.2 Borrower shall have performed in all material respects all of its
obligations under all Loan Documents which are required to be performed
on or prior to the Closing Date.
5.3 Borrower shall have good and marketable title to the Property.
5.4 The Title Company shall be unconditionally prepared to issue the
Title Policy insuring the lien of the Mortgage to be superior to all
defects in title other than the Permitted Exceptions.
5.5 CMC Heartland Partners III, LLC, a Delaware limited liability
company ("CMC III") shall enter into a cross-collateralization and
cross-default agreement with Lender to cross collateralize and cross
default CMC III's existing loan with Lender and the Loan hereunder.
After CMC III's existing loan with Lender is paid in full, the
collateral granted thereunder shall remain as additional collateral for
the Loan.
6. REPRESENTATIONS AND WARRANTIES. To induce Lender to execute this
Agreement and to make the Loan, Borrower represents and warrants to Lender
as follows:
6.1 Borrower. Borrower is a duly formed limited liability company
under the laws of the State of Delaware, is validly existing and in
good standing in the State of Delaware and is validly qualified to do
business as a foreign corporation in the State of Washington. The
certificate of formation and limited liability company agreement of
Borrower, certified copies of which has been furnished to Lender, are
in effect, unamended and are the true, correct and complete document
relating to Borrower's creation and governance. Borrower and CMC
Heartland Partners, a Delaware general partnership ("CMC"), its sole
member, have fully complied with all applicable securities and other
laws, ordinances and regulations in connection with the formation of
Borrower.
6.2 CMC Heartland Partners. CMC is a duly formed general partnership
under the laws of the State of Delaware, is validly existing and in
good standing in the State of Delaware and is validly qualified to do
business as a foreign corporation in the State of Washington. The
partnership agreement of CMC, a certified copy of which has been
furnished to Lender, is in effect, unamended and is the true, correct
and complete document relating to CMC's creation and governance.
6.3 HTI Interests, LLC. HTI Interests, LLC ("HTI Interests") is a duly
formed limited liability company under the laws of the State of
Delaware, is validly existing and in good standing in the State of
Delaware and is validly qualified to do business as a foreign
corporation in the State of Washington. The certificate of formation
and limited liability company agreement of HTI Interests, certified
copies of which has been furnished to Lender, are in effect, unamended
and are the true, correct and complete document relating to Borrower's
creation and governance. HTI Interests has fully complied with all
applicable securities and other laws, ordinances and regulations in
connection with the formation of HTI Interests.
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6.4 Guarantor. Guarantor is a duly formed limited partnership under
the laws of the State of Delaware, is validly existing and in good
standing in the State of Delaware. The certificate of limited
partnership and agreement of limited partnership of Guarantor,
certified copies of which has been furnished to Lender, are in effect,
unamended and are the true, correct and complete document relating to
Guarantor's creation and governance.
6.5 Title. Borrower owns good and marketable fee simple title to the
Real Property free and clear of all liens, claims and encumbrances,
except the Permitted Exceptions.
6.6 Validity and Enforceability of Documents. Upon the execution and
delivery of the Loan Documents, the Loan Documents shall be valid and
binding upon the parties that have executed the same in accordance with
the respective provisions thereof, and enforceable in accordance with
the respective provisions thereof, subject to bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and to general
principles of equity. Execution, delivery and performance of the Loan
Documents do not and will not contravene, conflict with, violate or
constitute a default under any organizational document or any
agreement, indenture or instrument to which any Obligor is a party or
is bound or which is binding upon or applicable to the Property or any
portion thereof.
6.7 Litigation. There is not any condition, event or circumstance
existing, or any litigation, arbitration, governmental or
administrative proceeding, action, examination, claims or demand
pending or, to the best of Borrower's knowledge after due inquiry,
threatened affecting any Obligor, or the Property, or involving the
validity or enforceability of the Loan Documents or involving any risk
of a judgment or liability which, if satisfied, would have an adverse
effect on the financial condition, business or properties of any
Obligor, or the priority of the lien of the Mortgage, or any of the
other Loan Documents or which would prevent any Obligor from complying
with or performing its respective obligations under this Agreement or
any of the other Loan Documents within the time limits set forth
therein for such compliance or performance and no basis for any such
matter exists.
6.8 Solvency. Each Obligor is solvent and able to pay its debts as
such debts become due, and has capital sufficient to carry on its
present business transactions. The value of each Obligor's property, at
a fair valuation, is greater than the sum of its debts. Obligor is not
bankrupt or insolvent. No Obligor has made an assignment for the
benefit of its creditors. There has been no trustee or receiver
appointed for the benefit of any Obligor's creditors and there has been
no bankruptcy, reorganization or insolvency proceedings instituted by
or against any Obligor. No Obligor will be rendered insolvent by the
execution, delivery or performance of the Loan Documents or by the
transactions contemplated thereunder.
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6.9 Financial Statements. All financial statements submitted to Lender
relating to the Obligors and the Property are true, complete and
correct, and have been prepared in accordance with sound accounting
principles consistently applied and fairly present the financial
condition of the Person to which they pertain and the other information
therein described and do not contain any untrue statement of a material
fact or omit to state a fact material to the financial statement
submitted or this Agreement. No material adverse change has occurred in
the financial condition of any Obligor or the Property since the dates
of each such financial statements.
6.10 Compliance with Laws. The use, occupancy and operation of the
Property for its intended purposes is not in violation any applicable
laws, any contractual arrangements with third parties or any covenants,
conditions, easements, rights of way or restrictions of record. Neither
Borrower nor any agent thereof has received any notice, written or
otherwise, alleging any such violation, which violation has not
previously been cured. The Property is in full compliance and
conformity with all zoning requirements, and will not be a
non-conforming or special use. No right to any off-site facilities will
be necessary to insure compliance by the Property with all applicable
laws.
6.11 Financing Statements. There are no UCC financing statements in
effect other than those to be filed and/or recorded by Lender which
name Borrower.
6.12 Additional Agreements. Except for the Contracts and as otherwise
included in the Permitted Exceptions, there are no leases, management,
leasing, development or other agreements in existence that affect the
Property.
7. BORROWER'S COVENANTS. In addition to the covenants contained in the
other Loan Documents, Borrower hereby covenants to Lender that:
7.1 Financial Statements; Tax Returns. Within ninety (90) days after
the end of each calendar year, Borrower shall furnish to Lender
financial statements and the federal and state income tax returns for
Borrower, such financial statements to be on Lender's standard form or
another form acceptable to Lender, setting forth the information
therein required as of December 31 of the immediately preceding
calendar year.
7.2 Distributions. Borrower shall make no distributions to CMC or
any of its affiliates of any revenue received by or on behalf of
Borrower from the operation or ownership of the Property.
7.3 Operating and Reserve Accounts. Borrower shall maintain the
operating and other accounts, if any, for the Property with
Lender.
8. LOAN EXPENSES. Borrower agrees to pay all of the Loan Expenses within
seven days after written demand therefor by Lender. Any Loan Expenses paid
by Lender shall bear interest commencing on the date demand for repayment
thereof is made by Lender until repaid at the Default Rate.
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9. EVENTS OF DEFAULT. The occurrence of any one or more Events of
Default under any of the other Loan Documents shall constitute an
"Event of Default" hereunder.
10. REMEDIES. Upon the occurrence of any Event of Default, Lender may avail
itself of any remedies conferred upon it at law or in equity or by the
terms of any of the Loan Documents, concurrently or successively with each
other and with any other available remedies, it being the intent hereof
that none of such remedies shall be to the exclusion of any others.
11. MISCELLANEOUS.
11.1 Additional Indebtedness. If any advances or payments made by
Lender pursuant to this Agreement or any other Loan Document, together
with the disbursement of the Loan, shall exceed the aggregate face
amount of the Note, all such advances and payments shall constitute
additional indebtedness secured by the Mortgage and all other security
for the Loan, and shall bear interest at the Default Rate from the date
advanced until paid. Nothing in this Section is intended to grant
Borrower the right to borrow proceeds of the Loan in excess of
$4,000,000.
11.2 Additional Acts. Borrower shall, upon request, execute and deliver
such further instruments and documents and do such further acts and
things as may be reasonably required to provide to Lender the evidence
of and security for the Loan contemplated by this Agreement.
11.3 Conflicting Provisions. In the event of any inconsistency between
any provision of this Agreement and any provision of any other Loan
Document, the provision of such other Loan Document shall govern;
provided, however, that the provisions of all of the Loan Documents
shall be construed as an integrated set of provisions governing the
Loan and, accordingly, shall be interpreted and construed liberally to
give the maximum validity, enforceability and effect to all of such
provisions.
11.4 Amendment; Waiver; Approval. This Agreement shall not be amended,
modified or supplemented without the written agreement of Borrower and
Lender at the time of such amendment, modification or supplement. No
waiver of any provision of this Agreement or any of the other Loan
Documents shall be effective unless set forth in writing signed by the
party making such waiver, and any such waiver shall be effective only
to the extent therein set forth. Failure by Lender to insist upon full
and prompt performance of any provisions of this Agreement or any of
the other Loan Documents, or to take action in the event of any breach
of any such provision or upon the occurrence of any Event of Default,
shall not constitute a waiver of any rights of Lender, and such Persons
may at any time thereafter exercise all available rights and remedies
with respect to such breach or Event of Default. Receipt by Lender of
any instrument or document shall not constitute or be deemed to be an
approval thereof. Any approvals required under any of the other Loan
Documents must be in writing, signed by Lender and directed to
Borrower.
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11.5 Notice. Any notices, communications and waivers under this
Agreement shall be in writing and shall be (i) delivered in person,
(ii) mailed, postage prepaid, either by registered or certified mail,
return receipt requested, (iii) sent by overnight express courier, or
(iv) sent by facsimile transmission, addressed in each case as follows:
To Lender: ▇/▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chtd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
To Borrower: CMC Heartland Partners IV, LLC
▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or to any other address as to any of the parties hereto, as such party
shall designate in a written notice to the other party hereto. All
notices sent pursuant to the terms of this Paragraph shall be deemed
received (i) if personally delivered, then on the date of delivery,
(ii) if sent by overnight, express carrier, then on the next federal
banking day immediately following the day sent, (iii) if sent by
registered or certified mail, then on the earlier of the third federal
banking day following the day sent or when actually received, or (iv)
if sent by facsimile transmission, then on the date of delivery if
delivered prior to 4:30 p.m. Chicago time or the next business day if
delivered after 4:30 p.m. Chicago time.
11.6 Benefit; Assignment. The rights, powers and remedies of Lender
under this Agreement shall inure to the benefit of Lender and its
successors and assigns. The rights and obligations of Borrower under
this Agreement may not be assigned and any purported assignment by
Borrower shall be null and void. Lender shall have the right at any
time to sell, assign or transfer portions of its right, title and/or
interest in and to this Agreement and the other Loan Documents
(including the sale of participation interests therein), without the
consent or approval of Borrower, and Borrower agrees to cooperate and
to cause the Guarantors to cooperate in all respects with Lender in
connection therewith, including, without limitation, the execution of
all documents and instruments reasonably requested by Lender or such
transferee provided that such documents and instruments do not
materially adversely affect any of Borrower's or Guarantors' duties or
obligations under the Loan Documents.
11.7 Governing Law. Except with respect to the creation, perfection,
priority and enforcement of the liens and security interests created by
certain of the Loan Documents, which shall be construed in accordance
with and governed by the laws of the State of Washington, the validity
and interpretation of this Agreement and the other Loan Documents shall
be governed by and construed in accordance with the laws of the State
of Illinois.
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11.8 Indemnity. Borrower agrees to indemnify, defend and hold Lender
harmless from and against any and all liabilities, obligations, losses,
damages, claims, costs and expenses (including court costs and
reasonable attorneys' fees) of whatever kind or nature which may be
imposed on, incurred by or asserted against Lender at any time which
relate to or arise from the offer for sale or sale of any interest in
Borrower, the acquisition or sale or offer for sale of all or any
portion of the Property and/or the ownership, use, operation or
maintenance of the Property, including, without limitation, any
brokerage commissions or finder's fees asserted against Lender with
respect to the making of the Loan or the acquisition of the Property.
11.9 Headings. The titles and headings of the articles, sections and
paragraphs of this Agreement 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
Agreement.
11.10 No Partnership or Joint Venture. Lender, by executing and
performing this Agreement shall not become a partner or joint venturer
with Borrower, any Guarantor or any of their respective associates or
affiliates and all inspections of the Property herein provided for are
for the sole benefit of Lender.
11.11 Time is of the Essence. Time is of the essence of the payment of
all amounts due Lender under the Loan Documents and performance and
observance by Borrower of each covenant, agreement, provision and term
of this Agreement and the other Loan Documents.
11.12 Invalid Provisions. In the event that any provision of this
Agreement is deemed to be invalid by reason of the operation of law,
or by reason of the interpretation placed thereon by any administrative
agency or any court, Borrower and Lender shall negotiate an equitable
adjustment in the provisions of the same in order to effect, to the
maximum extent permitted by law, the purpose of this Agreement and the
validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain
in full force and effect.
11.13 Setoff. Borrower agrees that Lender have all rights of set-off
and bankers' lien provided by applicable law, and in addition thereto,
Borrower agrees that at any time any Event of Default exists, Lender
may apply to the payment of any obligations of Borrower hereunder,
whether or not then due, any and all balances, credits, deposits,
accounts or moneys of Borrower then or thereafter with Lender.
11.14 Acts by Lender. Notwithstanding anything herein contained to the
contrary, Lender will not be required to make any disbursement or
perform any other act under this Agreement if, as a result thereof, any
such Person will violate any law, statute, ordinance, rule, regulation
or judicial decision applicable thereto.
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11.15 Binding Provisions. The covenants, warranties, agreements,
obligations, liabilities and responsibilities of Borrower under this
Agreement shall be binding upon and enforceable against Borrower and
its legal representatives, administrators, successors and permitted
assigns.
11.16 Counterparts. This Agreement may be executed in counterparts,
and all said counterparts when taken together shall constitute one and
the same Agreement.
11.17 No Third Party Beneficiary. This Agreement is only for the
benefit of the parties hereto and their permitted successors and
assigns. No other person or entity shall be entitled to rely on any
matter set forth herein without the prior written consent of such
parties.
11.18 Publicity. Lender reserves the right to publicize the making of
the Loan in any manner it deems appropriate, including, without
limitation, advertisements in trade journals and newspapers.
11.19 JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS
OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT SHALL BE LITIGATED IN THE CIRCUIT COURT OF ▇▇▇▇
COUNTY, ILLINOIS, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN
WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION.
BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF
SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT
SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE
ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS AGREEMENT.
BORROWER WAIVES ANY CLAIM THAT CHICAGO, ILLINOIS OR THE NORTHERN
DISTRICT OF ILLINOIS IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM
BASED ON LACK OF VENUE. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT,
BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING,
BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
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11.20 WAIVER OF RIGHT TO JURY TRIAL. BORROWER AND LENDER HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER. THIS
PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
LENDER: BORROWER:
BANK ONE, ILLINOIS, NA, CMC HEARTLAND PARTNERS IV, LLC,
a national banking association a Delaware limitedliability company
By: _______________________ By: CMC Heartland Partners, a Delaware
Title: _______________________ general partnership, the sole member of
Borrower
By: HTI Interests, LLC, a Delaware
limited liability company as its
managing partner
By: _____________________________
Title: __________________________
Attest: _________________________
Title: __________________________
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Schedule of Exhibits
A - Legal Description of Land
B - Permitted Exceptions
C - Closing Agenda
D - List of Contracts
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EXHIBIT A
Legal Description
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EXHIBIT B
Permitted Exceptions
1. Non-delinquent general real estate taxes for the calendar year 2001 and
subsequent years.
2. Exceptions _____________________ contained in Part I of Schedule B of
Chicago Title Insurance Company Pro Forma Policy No. __________ prepared
______________.
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EXHIBIT C
Closing Agenda
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EXHIBIT D
List of Contracts
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