Xxxxxxxxx Xxxxx Corporation
as Mortgagor
TO
The Bank of New York,
as Mortgagee
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SECOND AMENDMENT TO
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS, FIXTURE FILING AND FINANCING STATEMENT
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Dated: As of June 8, 1999
Location: Chicago, Illinois
Permanent Real Estate
Index Number(s): See Schedule A-1 Attached
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This document prepared by and after recording should be returned to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
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THIS MORTGAGE SECURES FUTURE ADVANCES AND FUTURE
OBLIGATIONS AT ANY TIME OUTSTANDING UP TO A MAXIMUM
PRINCIPAL AMOUNT OF $170,000,000
THIS SECOND AMENDMENT TO MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS, FIXTURE FILING AND FINANCING STATEMENT (the "Second
Amendment"), is made as of June 8, 1999, between XXXXXXXXX XXXXX CORPORATION,
("Mortgagor"), and THE BANK OF NEW YORK, as trustee for the benefit of the
holders of the Original Notes as (hereinafter defined), the Additional Notes
(as hereinafter defined) and the Second Additional Notes (as hereinafter
defined) ("Mortgagee").
RECITALS
1. WHEREAS, the Mortgagor entered into and delivered a certain
Mortgage, Security Agreement, Assignment of Leases and Rents, Fixture Filing
and Financing Statement, dated July 2, 1997 (the "Original Mortgage"), for
the benefit of the Mortgagee as trustee for the benefit of the holders of the
Original Notes, which Original Mortgage was recorded in the Xxxx County
Recorder of Deeds on July 3, 1997 as Document No. 97482235, encumbering that
certain real property described on Schedule A attached hereto;
2. WHEREAS, the Original Mortgage was amended by that certain First
Amendment to Mortgage, Security Agreement, Assignment of Leases and Rents,
Fixture Filing and Financing Statement, dated as of December 7, 1998 (the
"First Mortgage Amendment," and collectively with the Original Mortgage, the
"Mortgage"), which First Mortgage Amendment was recorded in the Xxxx County
Recorder of Deeds on December 8, 1998, as Document No. 08111895;
3. WHEREAS, the Mortgage was given to the Mortgagee to, among other
things, secure to the Mortgagee the repayment of certain sums together with
interest thereon, pursuant to the terms of that certain Indenture, dated as
of July 2, 1997 (the "Original Indenture"), as amended by that certain
Supplemental Indenture, dated as of December 7, 1998 (the "Supplemental
Indenture," and collectively with the Original Indenture, the "Indenture",
hereinafter referred to as the Indenture) and the performance by the
Mortgagor of certain covenants and agreements contained in the Mortgage and
other Loan Documents (as defined in the Mortgage);
4. WHEREAS, the Mortgagor, the Mortgagee and the Guarantors (as defined
in the Indenture) have entered into a certain Second Supplemental Indenture
of even date herewith (the "Second Supplemental Indenture") pursuant to which
certain terms and provisions of the Indenture have been amended, modified or
deleted as more particularly described therein; and
5. WHEREAS, the Mortgagor and Mortgagee desire to amend the Mortgage in
certain respects.
1
NOW THEREFORE, in consideration of the execution and delivery of the
Second Supplemental Indenture, the sum of Ten and 00/100 Dollars ($10.00) in
hand paid by the Mortgagee to the Mortgagor and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Mortgagor and Mortgagee hereby agree as follows:
6. The first recital to the Mortgage is hereby deleted in its entirety
and replaced with the following:
"WHEREAS, the Mortgagor and Mortgagee have
entered into that certain Indenture dated
as of July 2, 1997 (the "Original
Indenture"), as amended by that
Supplemental Indenture dated as of December
7, 1998 (the "Supplemental Indenture"), and
as further amended by that Second
Supplemental Indenture, dated as of June 8,
1999 (the "Second Supplemental Indenture,"
and collectively with the Original
Indenture and the Supplemental Indenture,
as amended, restated and supplemented or
otherwise modified from time to time, the
"Indenture") pursuant to which, among other
things, the Mortgagor has issued, (i)
pursuant to the Original Indenture,
$100,000,000 in aggregate principal amount
of its 10 1/4% Senior Secured Notes due
July 1, 2004 (the "Original Notes"), (ii)
pursuant to the Supplemental Indenture, an
additional $30,000,000 in aggregate
principal amount of its 10 1/4% Senior
Secured Notes due July 1, 2004 (the
"Additional Notes"), and (iii) pursuant to
the Second Supplemental Indenture, an
additional $40,000,000 in aggregate
principal amount of its 10 1/4% Senior
Secured Notes due July 1, 2004 (the "Second
Additional Notes," and collectively with
the Original Notes and the Additional
Notes, the "Notes").
7. MAXIMUM PRINCIPAL AMOUNT. The Mortgage, as amended by this Second
Amendment, secures future advances and future obligations at any time
outstanding up to a maximum principal amount of $170,000,000.
8. Except as amended herein, all terms, provisions and conditions of
the Mortgage, all Exhibits and Schedules thereto and all documents executed
in connection therewith shall remain unmodified and in full force and effect
and shall remain enforceable and binding in accordance with these terms.
Mortgagor hereby ratifies and confirms each and every term and provision
thereof as amended by this Second Amendment.
9. In the event of a conflict between the terms and conditions of the
Mortgage and the terms and conditions of this Second Amendment, then the
terms and conditions of this Second Amendment shall prevail.
2
10. This Second Amendment may be executed in any number of identical
counterparts, each of which shall for all purposes be deemed an original and
all of which constitute, collectively, one agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Mortgagor and Mortgagee have caused this instrument
to be duly executed as of the day and year first above written.
XXXXXXXXX XXXXX CORPORATION
By: /S/ XXX X. XXXXXXXX
Its: President and Chief Operating Officer
Attest:
/S/ XXXXX X. XXXXXX
Its: Vice President - Finance
and Accounting
BANK OF NEW YORK, as Trustee,
By: /S/ XXXX XXXXXXXX
Its: Assistant Vice President
Attest:
/S/ XXXX XXXXX
Its: Vice President
I hereby certify that the address of the Mortgagee named herein is The
Bank of New York, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
/s/ XXXX XXXXX
on behalf of the Mortgagee
NOTARIAL ACKNOWLEDGMENTS
STATE OF ILLINOIS )
COUNTY OF XXXX )
I, XXXXX X. XXXXXX, a Notary Public in and for the said County and State
aforesaid, DO HEREBY CERTIFY, that XXX X. XXXXXXXX and XXXXX X. XXXXXX, the
President and Secretary respectively of Xxxxxxxxx Xxxxx Corporation, an
Illinois corporation, personally known to me to be the same persons whose
names are subscribed to the foregoing instrument as such President and
Secretary 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 of the free and voluntary act of said corporation, for the uses and
purposes therein set forth.
Given under my hand and notarial seal this 8th day of June, 1999.
/S/ XXXXX X. XXXXXX
Notary Public
THIS INSTRUMENT WAS PREPARED AND RECORDED COUNTERPARTS SHOULD BE
RETURNED TO: XXXX XXXXXXX, SKADDEN, ARPS, SLATE, MEAGHER, & XXXX (ILLINOIS),
000 XXXX XXXXXX XXXXX, 00XX XXXXX, XXXXXXX, XXXXXXXX 00000
NOTARIAL ACKNOWLEDGMENTS
STATE OF NEW YORK )
COUNTY OF NEW YORK )
I, XXXXXX XXXXXXX, a Notary Public in and for the said County and State
aforesaid, DO HEREBY CERTIFY, that XXXX XXXXXXXX and XXXX XXXXX, the
Assistant Vice President and Vice President respectively of Bank of New York,
a New York banking corporation, personally known to me to be the same persons
whose names are subscribed to the foregoing instrument as such Assistant Vice
President and Vice President 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 of the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 4th day of June, 1999.
/S/ XXXXXX XXXXXXX
Notary Public
THIS INSTRUMENT WAS PREPARED AND RECORDED COUNTERPARTS SHOULD BE
RETURNED TO: XXXX XXXXXXX, SKADDEN, ARPS, SLATE, XXXXXXX & XXXX (ILLINOIS),
000 XXXX XXXXXX XXXXX, 00XX XXXXX, XXXXXXX, XXXXXXXX 00000
