EXHIBIT 10.20
AMENDMENT NO. 1 TO INDENTURE
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This Amendment No. 1 to Indenture (this "First Amendment"), dated as of
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December 18, 1998, between XXXXXXX ENTERPRISES, INC. (together with its
permitted successors and assigns, referred to herein as "Owner") and CORPORATE
REAL ESTATE CAPITAL, LLC, a Delaware limited liability company (together with
its successors and assigns, "Lender").
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PRELIMINARY STATEMENT
Pursuant to that certain Loan Agreement dated as of February 13, 1998,
between Owner and Lender, Lender made a Loan to Owner in the amount of
$9,500,000, which Loan is evidenced by the Note and is secured by, among other
things, that certain Indenture of Mortgage, Deed of Trust, Security Agreement,
Fixture Filing, Financing Statement and Assignment of Rents and Leases, dated as
of February 13, 1998 between Owner and Lender as mortgagee, as provided therein
(the "Original Indenture"). Capitalized terms used but not defined herein shall
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have the meaning ascribed to them in the Original Indenture.
The parties hereto desire to amend the Original Indenture, in accordance
with the terms of this First Amendment. The Original Indenture, as amended by
this First Amendment, is hereinafter referred to as the "Indenture".
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Owner desires to transfer 100% of the Equity Interest to Xxxxxxx American
Corporation ("MAC") in connection with the acquisition (the "Acquisition") of
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Owner by MAC and MAC shall guaranty Owner's obligations under the Indenture.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereby agree as follows:
1. Indenture Amendments. Owner and Lender hereby agree that the Original
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Indenture is hereby amended as follows:
(1) Article I is hereby amended by adding the following definitions
immediately before the definition of "Hazardous Substance":
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"Guarantor" shall mean Xxxxxxx American Corporation, a Delaware
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corporation, together with its permitted successors and assigns by
merger, consolidation or acquisition of its assets substantially as an
entirety.
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"Guaranty" shall mean that certain Guaranty, dated as of December
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18, 1998, made by Guarantor for the benefit of Lender.
(2) Clause (Y) of Section 2.11 is hereby deleted in its entirety and
the following substituted therefor:
(Y) a duly authorized undertaking of each of (i) Owner in form
and substance reasonably satisfactory to Lender, to the effect that Owner
will remain obligated hereunder and under the other Loan Documents to the
same extent as if such grant or release had not been made and (ii)
Guarantor stating that the Guarantor will remain obligated under the
Guaranty in accordance with its terms.
(3) Section 4.1 is hereby amended by (i) deleting the period at the
end of subparagraph (k) thereof and inserting in its place a semi-colon and (ii)
adding the following after such subparagraph:
(1) if Guarantor shall dissolve or otherwise fail to maintain its
legal existence (except as permitted by Section 10 of the
Guaranty); or fail to comply with the provisions of Section 10 of
the Guaranty;
(m) if any representation or warranty made in the Guaranty or any
other document, report, certificate, financial statement or other
instrument, agreement or document furnished by Guarantor in
connection with the Guaranty executed and delivered by Guarantor
shall be false or misleading in any material respect, as of the
date such representation or warranty was made, in a manner which
is material and adverse to Lender, as determined by Lender in its
reasonable discretion;
(n) if Guarantor (or any entity with whom Guarantor's assets
would ordinarily be consolidated in such proceeding), files or
consents to the filing of, or commences or consents to the
commencement of, any Bankruptcy Proceeding with respect to
Guarantor or such entity, or if Guarantor shall make an
assignment for the benefit of its creditors or shall admit in
writing the inability to pay its debts generally as they become
due;
(o) if any Bankruptcy Proceeding shall have been filed against
Guarantor (or any entity with whom Guarantor's assets would
ordinarily be consolidated in such proceeding), and the same is
not withdrawn,
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dismissed, canceled or terminated within ninety (90) days after
the date of such filing;
(p) if a receiver, liquidator or trustee shall be appointed for
Guarantor or if Guarantor shall be adjudicated bankrupt or
insolvent, or if any petition for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to,
or acquiesced in by, Guarantor, if any, or if any proceeding for
the dissolution or liquidation of Guarantor, if any, shall be
instituted and any of the foregoing is not withdrawn, dismissed,
canceled or terminated within ninety (90) days after the date of
such filing, adjudication, order or appointment;
(q) if default by Guarantor shall be made in the due observance
or performance of any covenant or agreement contained in the
Guaranty or any other document, report, certificate, financial
statement or other instrument, agreement or document delivered by
Guarantor pursuant to the Guaranty in each case after taking into
account any grace period contained therein;
(r) if Owner shall fail to (i) pay or cause to be paid in full on
or before December 18, 1998 to the Internal Revenue Service (the
"IRS") and the Massachusetts Department of Revenue (the "DOR")
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the outstanding tax liability of Owner for tax years 1992, 1993
and 1994 equal to $15,349,244 pursuant to its settlement
agreement with the IRS, (ii) escrow or cause to be escrowed
$1,700,000 on or before December 18, 1998, such funds to be
released for the payment to the IRS and DOR of outstanding tax
lability owed by Owner for, tax years 1995, 1996 and 1997, and
(iii) cause the release on or before December 18, 1998 of related
tax liens, if any; or
(s) if any representation or warranty made in any amendment
hereto or in any report, certificate, financial statement or
other instrument, agreement or document furnished by Owner in
connection with such amendment, shall be false or misleading in
any material respect as of the date such representation or
warranty was made in a manner which is material and adverse to
Lender as determined by Lender in its reasonable discretion.
(4) Section 4.2 is hereby amended by adding the following subparagraph
after subparagraph (h) thereof:
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(i) In addition to any rights and remedies of Lender contained
in this Section 4.2, Lender may pursue any other rights and remedies under
the Guaranty permitted by law or equity.
2. No Other Amendments. Except as expressly amended by this First
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Amendment, the Original Indenture shall continue in full force and effect and is
confirmed and ratified
hereby.
3. Representations and Warranties; Confirmation.
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(1) The representations, warranties, covenants and certifications of
Owner contained in the Original Indenture and in the Owner's Certificate and any
other certificate delivered by Owner in connection with Section 2.16 of the
Indenture are true and correct in all materials respects on the date hereof as
if made on the date hereof.
(2) Owner certifies that (i) the aggregate payment of $15,349,244 to
the IRS and DOR represents the full and final payment of all liabilities of
Owner due and owing or delinquent to such governmental entities for tax years
1992, 1993 and 1994 and (ii) that $1,700,000 represents the reasonable estimate
of Owner of tax liabilities of Owner to the IRS and the DOR for tax years 1995,
1996 and 1997.
(3) Owner ratifies and confirms all of the obligations and duties of
Owner contained in the Loan Documents to which it is a party.
4. Miscellaneous.
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(1) This First Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which shall be
deemed to be an original. Such counterparts shall constitute but one and the
same agreement.
(2) This First Amendment shall be governed by the laws of the
Commonwealth of Massachusetts.
(3) Owner shall reimburse Lender for the reasonable fees and expenses
of its counsel in connection with this First Amendment.
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IN WITNESS WHEREOF, the following parties have caused this First Amendment
to be duly executed as of the day and year first written above.
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Clerk
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
CORPORATE REAL ESTATE CAPITAL, LLC, a
Delaware limited liability company
By: SECURED CRC CORP., Manager
By:/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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ACKNOWLEDGMENT
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COMMONWEALTH OF MASSACHUSETTS
Suffolk- ss
On this 18th day of December, 1998, before me appeared Xxxxxx X. Xxxxxx,
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Jr. , to me personally known, who, being by me duly sworn (or affirmed), did say
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that (s)he is the Clerk of Xxxxxxx Enterprises, Inc. and
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that the seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed on behalf of said
corporation by authority of its board of directors, and said
Xxxxxx X. Xxxxxx, Xx. acknowledged said instrument to be the free act and
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deed of said corporation.
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
Commission Expires On: June 25, 2004
ACKNOWLEDGMENT
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss
On this 18th day of December, 1998, before me appeared Xxxxxx X. Xxxxx ,
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to me personally known, who, being by me duly sworn (or affirmed), did say that
(s)he is the Chief Financial Officer of Xxxxxxx Enterprises,'Inc. and that the
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seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed on
behalf of said corporation by authority of its board of directors, and said
Xxxxxx X. Xxxxx acknowledged said instrument to be the free act and deed
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of said corporation.
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
Commission Expires On: June 25, 2004
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ACKNOWLEDGMENT
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STATE OF California
COUNTY OF Los Angeles
On this 17th day of December, 1998, before me appeared Xxxxxxx Xxxxxx ,
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of Secured CRC Corp., Manager of Corporate Real Estate Capital, LLC, a Delaware
limited liability company, to me personally known, who, being by me duly sworn
(or affirmed), did say that (s)he is the Vice President of Secured
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CRC Corp. and acknowledged the execution of the foregoing instrument to be
his/her free act and deed as the Vice President of Secured CRC Corp.,
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Manager of Corporate Real Estate Capital, LLC and acknowledged the execution of
the foregoing instrument to be the free act and deed of Corporate Real Estate
Capital, LLC.
(SEAL) /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Notary Public
Commission expires 2-4-00
