Xxxxxxxxx Xxxxx Corporation
as Mortgagor
TO
The Bank of New York,
as Mortgagee
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FIRST AMENDMENT TO
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS, FIXTURE FILLING AND FINANCING STATEMENT
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Dated: As of December 7, 1998
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: Xxxx Xxxxxxx
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THIS MORTGAGE SECURES FUTURE ADVANCES AND FUTURE
OBLIGATIONS AT ANY TIME OUTSTANDING UP TO A MAXIMUM
PRINCIPAL AMOUNT OF $130,000,000
THIS FIRST AMENDMENT TO MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES
AND RENTS, FIXTURE FILING AND FINANCING STATEMENT (the
"First Amendment"), is made as of December 7, 1998, 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) and the
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 (the "Mortgage") dated July 2, 1997 for the benefit
of the Mortgagee as trustee for the benefit of the holders of the Original
Notes, which Mortgage was recorded at 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 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
July 2, 1997 (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);
3. WHEREAS, the Mortgagor, the Mortgagee and the Guarantors (as
defined in the Indenture) have entered into a certain Supplemental Indenture
of even date herewith (the "Supplemental Indenture") pursuant to which
certain terms and provisions of the Indenture have been amended, modified or
deleted as more particularly described therein; and
4. WHEREAS, the Mortgagor and Mortgagee desire to amend the
Mortgage in certain respects.
NOW THEREFORE, in consideration of the execution and delivery of the
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:
1. 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 July 2, 1997 (the "Original
Indenture") and as amended by that Supplemental Indenture
dated December 7, 1998 (the "Supplemental Indenture," and
collectively with the Original 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
1
10 1/4% Senior Secured Notes due July 1, 2004 (the
"Original Notes") and certain additional 10 1/4% Senior
Secure Notes due July 1, 2004 (the "Additional Notes,"
and collectively with the Original Notes, the "Notes.").
2. MAXIMUM PRINCIPAL AMOUNT. The Mortgage, as amended in this
First Amendment, secures future advances and future obligations at any time
outstanding up to a maximum principal amount of $130,000,000.
3. 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 Amendment.
4. In the event of a conflict between the terms and conditions of
the Mortgage Agreement and the terms and conditions of this Amendment, then
the terms and conditions of this Amendment shall prevail.
5. This First 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]
2
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
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Its: President and Chief Operating Officer
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Attest:
/s/ Xxxxx X. Xxxxxx
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Its: Vice President - Finance and Accounting
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BANK OF NEW YORK, as Trustee,
By: /s/ Xxxx XxXxxxxx
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Its: Assistant Vice President
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Attest:
/s/ Xxxx Xxxxx
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Its: Assistant Vice President
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NOTARIAL ACKNOWLEDGEMENTS
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 Vice President/Finance 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 Vice President/Finance 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 7th day of December,
1998.
/s/ Xxxxx X. Xxxxxx
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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
NOTARIAL ACKNOWLEDGEMENTS
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 Assistant 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 Assistant 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 December, 1998.
/s/ Xxxxxx Xxxxxxx
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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
