EXHIBIT 10.23
ASSUMPTION OF DEED OF TRUST
AND MODIFICATION AGREEMENT
THIS ASSUMPTION OF DEED OF TRUST AND MODIFICATION AGREEMENT (this
"Agreement") is made as of July 12, 2002 by and between THE ARISTOTLE
CORPORATION, a Delaware corporation ("Trustor"), successor-by-merger to NASCO
INTERNATIONAL, INC., a Wisconsin corporation ("Nasco"), and BANK OF AMERICA,
N.A., as administrative agent for the Lenders ("Agent"), with respect to the
following Recitals:
R E C I T A L S:
A. Nasco has previously executed and delivered for the benefit of Agent
that certain Second Amended and Restated Deed of Trust, Security Agreement,
Assignment of Rents and Leases and Fixture Filing dated August 21, 2001 (the
"Security Instrument") and recorded on August 31, 2001 as Document No.
2001-0103604-00 in the Official Records of Stanislaus County, California (the
"Official Records") which encumbers the Land described therein and described on
EXHIBIT A attached hereto. All initially-capitalized terms not defined herein
shall have their meaning as set forth in the Security Instrument.
B. The Security Instrument secures, among other things, Nasco's
obligations under the Credit Agreements.
C. Nasco and Agent have entered into (i) that certain First Amendment
to Amended and Restated Credit Agreement (Five Year) and Consent dated June 17,
2002 and (ii) that certain Second Amendment to Amended and Restated Credit
Agreement (364 Days) and Consent dated June 17, 2002 (collectively, the "Credit
Agreement Amendments"). Pursuant to the Credit Agreement Amendments, Agent has,
among other things, conditionally consented to Nasco's merging into Trustor (the
"Merger"). Pursuant to the Credit Agreement Amendments, among other things,
Trustor is executing an Assumption Agreement whereby Trustor is assuming all of
Nasco's obligations under the Loan Documents.
D. Pursuant to the Credit Agreement Amendments, among other things,
Agent has required Trustor to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals, the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. ASSUMPTION
Trustor acknowledges that it has acquired or will acquire
concurrently herewith the fee simple interest of Nasco in and to the Land
and hereby accepts and assumes the obligations and duties of Nasco in, to
and under the Security Instrument, whether occurring before or after the
date of this Agreement. Trustor acknowledges and agrees that it holds or
will hold fee simple title to the Land, together with all rights and
interests appurtenant thereto, subject to the provisions of
this Agreement and the charge and lien of the Security Instrument and that
it shall be bound by all of the terms, conditions and covenants contained
therein and herein.
2. MODIFICATION OF SECURITY INSTRUMENT
The Security Instrument is hereby modified to (i) reflect the
assignment and assumption set forth in this Agreement, (ii) provide that
all references to the Credit Agreements, the Credit Agreement (Five Year)
and the Credit Agreement (364 Days) in the Security Instrument shall mean,
respectively, the Credit Agreements, the Credit Agreement (Five Year) and
the Credit Agreement (364 Days) as amended as of the date hereof,
including by the Credit Agreement Amendments, and as the same may be
further modified in the future, (iii) provide that all of the obligations
under the Loan Documents as modified by this Agreement are the obligations
of Trustor as if Trustor is named therein, and (iv) reflect that the
Credit Agreement Amendments and this Agreement constitute Loan Documents.
3. TITLE ENDORSEMENT
Concurrently with the recording of this Agreement, Trustor shall
cause to be delivered to Agent at Trustor's sole cost and expense a CLTA
110.5 endorsement, in form and substance acceptable to Agent in its sole
and absolute discretion, to Agent's existing title policy relating to the
Security Instrument.
4. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
5. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and
the same instrument. Signature and acknowledgment pages may be detached
from the counterparts and attached to a single copy of this Agreement to
physically form one document, which may be recorded.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
TRUSTOR:
THE ARISTOTLE CORPORATION,
a Delaware corporation (successor-by-merger
to Nasco International Inc., a Wisconsin
corporation)
By: /s/ Steven B. Lapin
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Its: President and Chief Operating Officer
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AGENT:
BANK OF AMERICA, N.A., as Agent for the Lenders
By: /s/ David Johanson
-------------------
Its: Vice President
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[TRUSTOR]
STATE OF _______________ )
) SS
COUNTY OF ___________ )
On _____________________ before me, _________________ personally appeared
_________________________________ personally known to me or proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the persons(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
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Signature of Notary
[AGENT]
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On _____________________ before me, _________________ personally appeared
_________________________________ personally known to me or proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the persons(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
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Signature of Notary
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