Exhibit 10.27
CORRECTIVE AMENDMENT
TO
SUBORDINATED PROMISSORY NOTE
This Corrective Amendment to the Subordinated Promissory Note (the
"Amendment") made as of the 25th day of November, 1996, by and between POSSIBLE
DREAMS, LTD., a Delaware corporation having a principal address of Six ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Maker") and Ascensions, Inc., a
Massachusetts corporation f/k/a Columbia National Corporation with an address of
▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ( the "Payee").
W I T N E S S E T H
WHEREAS, pursuant to the terms and conditions of that certain Asset
Purchase Agreement among Maker, Payee, Possible Dreams, Ltd., a Massachusetts
corporation ("PDL"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust u/d/t 8/5/85,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ (the "Purchase Agreement"), Maker purchased
substantially all of the assets of Payee and Columbia;
WHEREAS, at the closing Maker issued to Payee a Subordinated Promissory
Note dated as of May 17, 1996 in the original principal amount of Three Hundred
Thirty-Two Thousand Dollars ($332,000) as part of the consideration paid by
Maker to Payee pursuant to the Purchase Agreement (the "Note");
WHEREAS, the fourth paragraph of the Note contained an error regarding the
mandatory reduction of the principal amount of the Note in the event the
"Maker's EBITDA" (as defined in the Note) for the year ending December 31, 1996
is less than $3,500,000;
WHEREAS, the Maker and the Payee have agreed to amend the Note in order to
correct the fourth paragraph as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The fourth paragraph of the Note, beginning on the first page of the
Note, is amended to read in its entirety as follows:
"The principal amount of this Note is subject to mandatory reduction by an
amount equal to $67,500 in the event the "Maker's EBITDA" (as hereinafter
defined) for year ending December 31, 1996 is less than $3,500,000. For
purposes of this Note, (i) the term "Maker's EBITDA" shall mean an amount equal
to the sum of (x) EBITDA of the Payee and PDL ("Sellers"), determined on a
combined basis in accordance with generally accepted accounting principles
consistently applied ("GAAP"), for the period from January 1, 1996 to and
including the day preceding the date hereof, PLUS (y) EBITDA of the Maker,
determined in accordance with GAAP, for the period from the date hereof to and
including December 31, 1996, and (ii) the term
"EBITDA" shall mean, for the appropriate period, the net income (or loss) of the
applicable entity for such period, PLUS the sum of (A) interest expense, (B)
depreciation, (C) amortization of goodwill, (D) income taxes paid or accrued,
and, with respect to Maker only for the period from the date hereof to and
including December 31, 1996, (E) increases in other expenses directly resulting
from the transactions contemplated by the Purchase Agreement, including
amortization of original issue discount and capitalized acquisition expenses,
management fees and inventory write-up (but exclusive of increases in executive
salaries), (F) bonuses to executive management of Maker paid or accrued in
accordance with employment agreements dated the date hereof, and (G) payments
made by Maker to its direct and indirect corporate shareholders pursuant to a
tax sharing agreement dated the date hereof, and, with respect to Payee only for
the period from January 1, 1996 to and including the day preceding the date
hereof, (H) salaries paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and to members of his direct family
and payroll taxes and fringe benefits paid or accrued in respect of such persons
during such period, (I) expenses incurred during such period which are
specifically attributable to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ automobile lease, (J) travel and
entertainment expenses incurred by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ during such period for the
account of Sellers in the course of his employment with the Sellers but which
are not directly related to their business, (K) legal and accounting fees and
expenses incurred during such period which are specifically attributable to the
asset purchase transaction contemplated by the Purchase Agreement and (L) the
loss suffered during such period on the "Artiva" and "Sunrise" inventory
close-out in the amount of $93,000, LESS the sum of (X) interest income and (Y)
income tax credits received or accrued, in each case to the extent included in
arriving at such net income (or loss) for the applicable period and determined
in accordance with GAAP. Any such reduction shall be effective automatically,
retroactive to the date of issue hereof, immediately after the later of (1)
acceptance by Maker of the Sellers' combined financial statements pursuant to
and in accordance with Section 2.6 of the Purchase Agreement and (2) acceptance
by Sellers' of the Maker's audited financial statements for the fiscal period
ending December 31, 1996 pursuant to and in accordance with Section 2.7 of the
Purchase Agreement, with interest theretofore accrued on this Note at the rate
hereinabove provided to be recomputed as if the principal amount of this Note
from the date of issue hereof had been $264,500. Any interest theretofore paid
on the principal amount hereof in excess of the interest hereon as so recomputed
shall be credited against the next two semi-annual payments of interest due
hereunder, with each such credit to be equal to 50% of such excess. Any
reduction of this Note pursuant to the terms of this paragraph shall be deemed a
reduction of the purchase price paid pursuant to the Purchase Agreement."
2. Maker and Payee hereby ratify and confirm all of their respective
obligations, covenants, duties and agreements set forth in the Note, as amended
by the terms hereof.
3. This Amendment shall be governed by and construed in accordance with
the laws of the State of Rhode Island applicable to contracts made and to be
performed within such state without resort to its conflict of law rules.
* * * * * * *
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed under seal as of the day and year first written above.
PAYEE
ASCENSIONS, INC.
Columbia National Corporation,
a Massachusetts corporation
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
MAKER
POSSIBLE DREAMS, LTD.,
a Delaware corporation
By: /s/▇▇▇▇▇▇ ▇. Fitting
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▇▇▇▇▇▇ ▇. Fitting
Chairman
