EXHIBIT 10.25
AMENDMENT NO.1
To
ASSET PURCHASE AGREEMENT
Between
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
And
ROAD BAY INVESTMENTS, LLC
THIS FIRST AMENDMENT, dated as of September 25, 2009 (this "Amendment"),
between Allstate Life Insurance Company of New York, a life insurance company
domiciled in New York (together with its successors and assigns, the "Seller"),
and Road Bay Investments, LLC, a limited liability company organized under the
laws of the State of Delaware (together with its successors and assigns, the
"Purchaser"), amends that certain Asset Purchase Agreement, dated as of
September 25, 2009 between Seller and Purchaser (the "Asset Purchase
Agreement").
WHEREAS, Purchaser and Seller entered into the Asset Purchase Agreement and
now desire to amend it in the respects, but only in the respects, hereinafter
set forth.
NOW, THEREFORE, Purchaser and Seller hereby agree as follows:
1. Capitalized terms used herein shall have the respective meanings ascribed
thereto in the Asset Purchase Agreement unless herein defined or the context
shall otherwise require.
2. Additional Definitions. Section 1.01 of the Asset Purchase Agreement is
amended by adding the following:
"Debt" means, without duplication, the Purchaser's liabilities for borrowed
money; liabilities for the deferred purchase price of property (excluding
accounts payable arising in the ordinary course of business but including,
without imitation, all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such property);
capital lease obligations; all liabilities for borrowed money secured by any
lien with respect to any property owned by the Purchaser (whether or not it has
assumed or otherwise become liable for such liabilities); and any guaranty by
the Purchaser with respect to such liabilities or obligations of another person
or entity.
"Existing Note" means any Note issued by the Purchaser to Seller on the
first date written above.
"Total Assets" means, at any time, the total assets of the Purchaser which
would be shown as assets on a balance sheet as of such time prepared in
accordance with generally accepted accounting principles as in effect from time
to time in the United States of America.
3. Exhibit A to the Asset Purchase Agreement is hereby deleted in its
entirety and replaced by Exhibit A attached hereto.
4. Each Existing Note shall be surrendered by Seller to Purchaser, and for
each such Existing Note surrendered, a new Note shall be issued in return by
the Purchaser, for the same principal sum, with the same maturity date, and at
the same interest rate as the Existing Note, but in other respects in the form
of Exhibit A attached hereto. Each Note issued on or after the first date
written above shall be governed and subject to the terms of the Asset Purchase
Agreement, as may be amended from time to time.
5. The Asset Purchase Agreement is amended by renumbering Articles V and VI
as Articles VI and VII, respectively, and all article and section references
are amended accordingly.
6. The following is added as Article V of the Asset Purchase Agreement:
ARTICLE V
RATIO OF DEBT TO TOTAL ASSETS COVENANT
Until the Asset Purchase Agreement is terminated and all obligations of the
Purchaser under the Asset Purchase Agreement and the Notes have been paid or
performed in full, the Purchaser covenants and agrees that it will not directly
or indirectly, create, incur, assume, guarantee, or otherwise become directly
or indirectly liable with respect to any Debt, unless on the date the Purchaser
becomes liable with respect to any such Debt and immediately after giving
effect thereto and the concurrent retirement of any other Debt, no Event of
Default exists and the aggregate amount of its Debt does not exceed 50% of its
Total Assets for its then most recently ended fiscal year.
7. Section 6.01 of the Asset Purchase Agreement is hereby deleted in its
entirety and replaced by the following:
Section 6.01 Events of Default. The occurrence of any of the following
events shall constitute an "Event of Default" hereunder:
(a) default is made in the payment of any installment of interest on
the Notes when such interest becomes due and payable and such default
continues for a period of 30 days,
(b) default is made in the payment of the principal of the Notes when
such principal becomes due and payable, or
(c) default is made in the performance of the covenant set forth in
Article V of this Agreement, or any other part of this Agreement, as may
be amended from time to time.
8. Except as specifically amended hereby, the terms and conditions of the
Asset Purchase Agreement shall remain unchanged. To the extent that the
provisions of this Amendment No. 1 are inconsistent with those of the Asset
Purchase Agreement, the terms of the Amendment No. 1 shall govern with respect
to the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
executed by their respective officers thereunto duly authorized, as of the
first date written above.
ALLSTATE LIFE INSURANCE COMPANY
OF NEW YORK
as Seller
By: -----------------------------
Name: Michael T. Moran
Title: Authorized Signatory
By: -----------------------------
Name: David L. Kocourek
Title: Authorized Signatory
ROAD BAY INVESTMENTS, LLC
as Purchaser
By: -----------------------------
Name: John Carbone
Title: Authorized Signatory
By: -----------------------------
Name: P. Sean Giblin
Title: Authorized Signatory
EXHIBIT A
FORM OF NOTE
[ISSUE DATE]
Road Bay Investments, LLC, a limited liability company duly organized and
existing under the laws of the State of Delaware (the "Company"), for value
received hereby promises to pay to Allstate Life Insurance Company of New York
("ALNY"), or its assigns, the outstanding balance of the principal sum of
[ ] in cash on [STATED MATURITY DATE] and to pay interest
thereon semi-annually on the first day of April and October in each year,
commencing [FIRST INTEREST DATE], at [RATE], until the principal hereof is paid
in full, except that the final payment of any accrued and unpaid interest shall
be concurrent with the final payment of principal. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. All principal and interest
shall be paid at the principal corporate office of the Company or such other
place, which shall be acceptable to the Company, as the holder hereof shall
designate in writing to the Company, in collected and immediately available
funds in lawful money of the United States of America. Principal and interest
shall be payable on the terms and conditions set forth below
1. The Company covenants that if:
(a) default is made in the payment of any installment of interest on
this Note when such interest becomes due and payable and such default
continues for a period of 30 days,
(b) default is made in the payment of the principal of this Note when
such principal becomes due and payable, or
(c) default is made in the performance of the covenant set forth in
Article V, or any other part of, that certain Agreement dated as of
September 25, 2009 between the Company and ALNY, as may be amended from
time to time,
the Company will, upon demand by the holder of this Note, pay to it the
entire outstanding principal amount of this Note, plus all accrued but unpaid
interest, plus interest on such overdue principal and overdue interest at the
interest rate borne by this Note; and, in addition thereof, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable attorneys' fees.
2. Each payment made hereunder will be credited first to accrued but
unpaid interest, if any, and the balance of such payment will be credited to
the principal amount hereof.
3. In the event that any payment of principal or interest on this Note
is scheduled to be made on a day that is not a Business Day, then such payment
shall be made on the next following Business Day and no additional interest
shall accrue as a result of payment on such following Business Day. For the
purpose of this paragraph,
"Business Day" shall mean any day that is not a Saturday, Sunday, or any other
day on which banking institutions in the State of Illinois are permitted or
required by any applicable law to close.
4. The Company's obligations under this Note are secured pursuant to
that certain Pledge and Security Agreement dated as of September 25, 2009
between the Company and ALNY, as may be amended from time to time.
5. The Company may prepay this Note, in part or in full, at any time.
The Company shall prepay this Note upon disposition of the asset, or any real
estate related to such asset, purchased by the Company with this Note.
6. In the event the Company consolidates or merges into another entity
or transfers substantially all of its assets to another entity, the entity into
which the Company consolidates or merges or to which the assets of the Company
are transferred must assume the liability of the Company hereunder.
7. This Note shall be construed in accordance with, and governed by, the
laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in its
name and attested to by its authorized officer, all as of the date first
written above.
ROAD BAY INVESTMENTS, LLC
By: -----------------------------
Name:
Title: Authorized Signatory
By: -----------------------------
Name:
Title: Authorized Signatory
Attest: