FIFTEENTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
------------------------------
THIS FIFTEENTH AMENDMENT AND MODIFICATION TO LOAN AND SECURITY
AGREEMENT (the "Amendment") is made effective as of November 27, 2002 by and
among TODAY'S MAN, INC., a Pennsylvania corporation ("Borrower"); each of the
Subsidiaries of the Borrower identified under the caption "Guarantor" on the
signature pages of this Amendment (individually, a "Guarantor" and,
collectively, the "Guarantors"); each of the financial institutions identified
under the caption "Lenders" on the signature pages of this Amendment (including
without limitation Standard Federal Bank National Association in such capacity)
(individually, a "Lender" and, collectively, the "Lenders"); and STANDARD
FEDERAL BANK NATIONAL ASSOCIATION, formerly known as Michigan National Bank, as
successor in interest to Mellon Bank, N.A., as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
BACKGROUND
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A. Borrower, Guarantors, Lender and Agent previously entered into a
certain Loan and Security Agreement dated December 4, 1998, as amended by (i)
that certain First Amendment and Modification to Loan and Security Agreement
dated Xxxxx 00, 0000, (xx) that certain Second Amendment and Modification to
Loan and Security Agreement dated October 13, 1999, (iii) that certain Third
Amendment and Modification to Loan and Security Agreement dated March 15, 2000,
(iv) that certain Fourth Amendment and Modification to Loan and Security
Agreement dated May 1, 2000, (v) that certain Fifth Amendment and Modification
to Loan and Security Agreement dated May 11, 2000, (vi) that certain Sixth
Amendment and Modification to Loan and Security Agreement dated August 16, 2000,
(vii) that certain Seventh Amendment and Modification to Loan and Security
Agreement dated November 15, 2000, (viii) that certain Eighth Amendment and
Modification to Loan and Security Agreement dated February 28, 2001, (ix) that
certain Ninth Amendment and Modification to Loan and Security Agreement dated
June 14, 2001, (x) that certain Tenth Amendment and Modification to Loan and
Security Agreement dated September 21, 2001, (xi) that certain Eleventh
Amendment and Modification to Loan and Security Agreement dated December 14,
2001, (xii) that certain Twelfth Amendment and Modification to Loan and Security
Agreement dated February 27, 2002 (the "Twelfth Amendment"), (xiii) that certain
Thirteenth Amendment and Modification to Loan and Security Agreement dated April
25, 2002, and (xiv) that certain Fourteenth Amendment and Modification to Loan
and Security Agreement dated September 30, 2002 (collectively, the "Loan
Agreement"), pursuant to which, inter alia, Lender agreed to extend to Borrower
a revolving credit facility up to a maximum outstanding principal amount of
Twenty-Three Million Dollars ($23,000,000.00).
B. Borrower, Guarantors, Lender and Agent are entering into this
Amendment to amend certain terms and conditions of the Loan Agreement.
C. Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth for such terms in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Seasonal Reduction of Obligations. Notwithstanding anything to
the contrary contained in the Loan Agreement, the aggregate maximum amount of
Obligations outstanding under the Loan Agreement and the other Loan Documents
will not exceed the following amounts during the following periods:
Maximum Amount of Obligations Time Periods
----------------------------- ------------
$19,500,000 as of November 22, 2002 and at all times
thereafter through December 3, 2002
$19,000,000 as of December 4, 2002 and at all times
thereafter through December 6, 2002
$18,750,000 as of December 7, 2002 and at all times
thereafter through December 9, 2002
$18,000,000 as of December 10, 2002 and at all times
thereafter through December 11, 2002
$17,000,000 as of December 12, 2002 and at all times
thereafter through December 15, 2002
$16,500,000 as of December 16, 2002
$16,000,000 as of December 17, 2002
$15,100,000 as of December 18, 2002 and at all times
thereafter through December 22, 2002
$14,500,000 as of December 23, 2002
$14,000,000 as of December 24, 2002 and at all times
thereafter through December 25, 2002
$12,750,000 as of December 26, 2002 and at all times
thereafter through December 30, 2002
$11,500,000 as of December 31, 2002 and
at all times thereafter
2. Permitted Out-Of-Formula Advances and Usage. Notwithstanding
anything to the contrary contained in the Loan Agreement, Borrower may exceed
the formula availability calculated pursuant to Sections 2.1 and 2.3 of the Loan
Agreement by an amount not exceed the following amounts during the following
periods:
Maximum Out-Of Formula Time Periods
---------------------- ------------
$1,500,000 as of November 22, 2002
$1,425,000 as of November 23, 2002
$1,350,000 as of November 24, 2002
$1,275,000 as of November 25, 2002
$1,200,000 as of November 26, 2002
$1,125,000 as of November 27, 2002
$1,050,000 as of November 28, 2002 and at all times
thereafter through December 1, 2002
$950,000 as of December 2, 2002 and at all times
thereafter through December 4, 2002
$500,000 as of December 5, 2002 and at all times
thereafter through December 8, 2002
$250,000 as of December 9, 2002 and at all times
thereafter through December 12, 2002
$0 as of December 13, 2002 and
at all times thereafter
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In no event shall the outstanding Revolving Credit Facility
Usage (including permitted Out-Of-Formula Advances described above) exceed the
then maximum amount of outstanding Obligations (as amended and reduced as set
forth in Paragraph 1 above) at any time. For purposes of this Amendment and the
Loan Agreement, the term "Out-Of-Formula Advances" shall be redefined to mean
the amount by which the then existing Revolving Credit Facility Usage exceeds
the then applicable Borrowing Base. Upon the occurrence of a Default or an Event
of Default under the Loan Documents, at Agent's option, Borrower will repay in
full all Out-Of-Formula Advances.
3. Letter of Credit Sublimit. Notwithstanding anything to the
contrary contained in the Loan Agreement (including, without limitation, Section
4.4 thereof), as of the date hereof and at all times thereafter, the aggregate
outstanding undrawn amount of all Letters of Credit will not exceed $1,600,000
(the "Letter of Credit Sublimit"), provided however, Agent may, in its sole and
absolute discretion, issue for the account of Borrower Letters of Credit at any
time after the date hereof in an aggregate face amount not to exceed $250,000
(the "Additional Letters of Credit"), provided that the aggregate face amount of
the Additional Letters of Credit together with any other Letters of Credit then
outstanding do not exceed the Letter of Credit Sublimit.
4. Tangible Net Worth. Section 13.1 of the Loan Agreement
shall be and is hereby amended to read in its entirety as follows:
"13.1. Tangible Net Worth. Borrower will maintain Tangible Net
Worth of not less than the following amounts for the following periods:
Amount Periods
------ -------
$19,119,000 as of January 5, 2002, and at
all times thereafter until
January 31, 2002;
$14,912,000 as of February 1, 2002 and at all
times thereafter until March 1, 2002;
$13,205,000 as of March 2, 2002 and at all times
thereafter until April 5, 2002;
$12,730,000 as of April 6, 2002 and at all times
thereafter until May 3, 2002;
$12,857,000 as of May 4, 2002 and at all times
thereafter until May 31, 2002;
$13,420,000 as of June 1, 2002 and at all times
thereafter until July 5, 2002;
$13,706,000 as of July 6, 2002 and at all times
thereafter until August 2, 2002;
$12,209,000 as of August 3, 2002 and at all times
thereafter until August 30, 2002;
$11,144,000 as of August 31, 2002 and at all
times thereafter until October 4, 2002;
$10,223,000 as of October 5, 2002 and at all times
thereafter until November 1, 2002;
$9,724,000 as of November 2, 2002 and at all
times thereafter until November 29, 2002;
$12,308,000 as of November 30, 2002 and at all
times thereafter until January 3, 2003;
$15,395,000 as of January 4, 2003 and at all times
thereafter until January 31, 2003; and
$14,272,000 as of February 1, 2003 and at all times thereafter."
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5. Indebtedness to Tangible Net Worth. Section 13.2 of the
Loan Agreement shall be and is hereby amended to read in its entirety as
follows:
"13.2. Indebtedness to Tangible Net Worth Ratio. Borrower will
maintain a ratio of Indebtedness (excluding any Subordinated
Indebtedness) to Tangible Net Worth of not more than (i) 2.25 to 1.0 as
of January 5, 2002 and all times thereafter through January 31, 2002,
(ii) 3.06 to 1.0 as of February 1, 2002 and all times thereafter until
Xxxxx 0, 0000, (xxx) 3.13 to 1.0 as of March 2, 2002 and at all times
thereafter through April 5, 2002, (iv) 3.23 to 1.0 as of April 6, 2002
and at times thereafter through May 3, 2002, (v) 3.22 to 1.0 as of May
4, 2002 and at times thereafter trough May 31, 2002, (vi) 3.06 to 1.0
as of June 1, 2002 and at all times thereafter through July 5, 2002,
(vii) 2.86 to 1.0 as of July 6, 2002 and at all times thereafter
through August 2, 2002, (viii) 3.23 to 1.0 as of August 3, 2002 and at
all times thereafter through August 30, 2002, (ix) 3.83 to 1.0 as of
August 31, 2002 and at all times thereafter through October 4, 2002,
(x) 4.1 to 1.0 as of October 5, 2002 and at all times thereafter
through November 1, 2002, (xi) 4.55 to 1.0 as of November 2, 2002 and
at all times thereafter through November 29, 2002, (xii) 3.51 to 1.0 as
of November 30, 2002 and at all times thereafter through January 3,
2003, (xiii) 2.59 to 1.0 as of January 4, 2003 and at all times
thereafter through January 31, 2003, and (xiv) 2.67 to 1.0 as of
February 1, 2003 and at all times thereafter."
6. Net Income/Net Loss. Section 13.5 of the Loan Agreement
shall be and is hereby amended to read in its entirety as follows:
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"13.5. Net Income/Net Loss. Borrower will maintain a level of
Net Income/Net Loss of not less than the following amounts for the
following periods (where a loss is indicated, such loss shall not be
greater than the indicated amount):
Amount Periods
------ -------
($1,623,000) For the fiscal month ending
March 2, 2002
($850,000) For the fiscal month ending
April 6, 2002
($173,000) For the fiscal month ending
May 4, 2002
$263,000 For the fiscal month ending
June 1, 2002
($14,000) For the fiscal month ending
July 6, 2002
($1,797,000) For the fiscal month ending
August 3, 2002
($1,364,000) For the fiscal month ending
August 31, 2002
($1,082,000) For the fiscal month ending
October 5, 2002
($499,000) For the fiscal month ending
November 2, 2002
$433,000 For the fiscal month ending
November 30, 2002
$2,787,000 For the fiscal month ending
January 4, 2003
($1,424,000) For the fiscal month ending
February 1, 2003
7. Amendment and Restatement of Financial Covenants. Borrower
agrees that Agent and Lender may amend and restate in their entirety the
financial covenants set forth in Article 13 of the Loan Agreement (as amended
above), in their sole discretion, at such time as Borrower obtains any New
Capital Funds. Borrower agrees to execute and deliver to Agent an amendment to
Loan Agreement evidencing such amendment and restatement of the financial
covenants in form and content acceptable to Agent.
8. Monthly Statements. Notwithstanding anything to the
contrary contained in the Loan Agreement (including without limitation Section
14.4 thereof), Borrower will deliver to Agent, on or before December 16, 2002,
the monthly financial statements of Borrower for the month ending November,
2002.
9. Borrowing Base Certifications and Related Documents.
Section 14.5 of the Loan Agreement shall be and is hereby amended to read in its
entirety as follows:
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"14.5. Borrowing Base Certifications and Related Documents. On
each Business Day and as otherwise requested by Agent, a Borrowing Base
Certificate in the form of Exhibit H attached hereto, together with
such additional information as may be requested by Agent, certified as
to accuracy by the chief financial officer, controller, director of
corporate reporting or president of Borrower."
10. Fees. Borrower agrees to pay to Agent (for the benefit of
the Lender) certain fees in connection with Agent and Lender entering into this
Amendment
11. Confirmation of Collateral. Nothing contained herein shall
be deemed to be a compromise, satisfaction, accord and satisfaction, novation or
release of any of the Loan Documents, or any rights or obligations thereunder,
or a waiver by Agent or any Lender of any of its rights under the Loan Documents
or at law or in equity. All liens, security interest, rights and remedies
granted to Agent or Lenders in Loan Documents are hereby ratified, confirmed and
continued. Borrower and Guarantors acknowledge and agree that the term "Loan
Documents" as used in the Loan Agreement and any other documents executed in
connection therewith shall include, without limitation, this Amendment and any
and all other documents executed in connection herewith.
12. Challenge to Enforcement. Borrower and Guarantors
acknowledge and agree that they do not have any defense, set-off, counterclaim
or challenge against the payment of any sums owing under the Loan Documents, or
the enforcement of any of the terms or conditions thereof.
13. Representation and Warranties. Borrower and Guarantors
hereby represent and warrant, which representations and warranties shall survive
until all Obligations are paid and satisfied in full, as follows:
13.1 All representations and warranties of Borrower and
Guarantors set forth in the Loan Documents are true and complete in all material
respects as of the date hereof.
13.2 Upon the effectiveness of this Amendment, no
condition or event exists or has occurred which would constitute an event of
default under the Loan Documents or under any other material agreement between
Borrower, any Guarantor and any other third party (or would, upon the giving of
notice or the passage of time, or both constitute an event of default).
13.3 Except as otherwise previously disclosed to Agent in
writing, Borrower has not received any notice of default or event of default
from any other lender, trustee or lessor with respect to any other loan,
financing or lease agreement.
13.4 The execution and delivery of this Amendment by
Borrower and Guarantors and all documents and agreements to be executed and
delivered pursuant to the terms hereof:
(a) have been duly authorized by all requisite
corporate action by Borrower and by each Guarantor;
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(b) will not conflict with or result in the breach of
or constitute a default (upon the passage of time, delivery of notice or both)
under Borrower's or any Guarantor's Articles of Incorporation, By-Laws or any
applicable statute, law, rule, regulation or ordinance or any indenture,
mortgage, loan or other document or agreement to which Borrower or any Guarantor
is a party or by which any of them is bound or affected; and
(c) will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of Borrower or any Guarantor, except liens in favor of the
Agent or as permitted hereunder or under the Loan Documents.
14. Conditions. The obligation of Agent and Lender to enter
into this Amendment is subject to the following conditions (any of which may be
waived by Agent):
14.1 Loan Documents. Borrower and Guarantors and all other
required persons and entities will have executed and delivered to Agent this
Amendment and such other documents as Agent may require.
14.2 Secretary Certificate. Borrower will have delivered
to Agent a certificate from the Secretary of Borrower and each Guarantor
attesting to the resolutions of Borrower's and each Guarantor's board of
directors authorizing its execution, delivery and performance of the Loan
Agreement, this Amendment, the other Loan Documents to which Borrower and each
Guarantor, respectively, is a party and authorizing certain specific officers of
Borrower and each Guarantor to execute the same. Such certificate shall include
a list of each member of the Borrower's and each Guarantor's board of directors
and officers by name and title.
14.3 Other Documents. Such other documents as may be
required to be submitted to Agent by the terms hereof or any of the Loan
Documents shall have been delivered by or on behalf of Borrower and Guarantors
to Agent.
15. Additional Documents; Further Assurances. Borrower
covenants and agrees to execute and deliver to Agent, or to cause to be executed
and delivered to Agent contemporaneously herewith, at the sole cost and expense
of Borrower, any and all other documents, agreements, statements, resolutions,
certificates, consents and information as Agent may require in connection with
the matters or actions described herein. Borrower further covenants and agrees
to execute and deliver to Agent or to cause to be executed and delivered at the
sole cost and expense of Borrower, from time to time, any and all other
documents, agreements, statements, certificates and information as Agent shall
reasonably request to evidence or effect the terms hereof, the Loan Agreement,
as amended, or any of the other Loan Documents, or to enforce or to protect
Agent's interest in the Collateral. All such documents, agreements, statements,
certificates and information shall be in form and content acceptable to Agent in
its sole discretion.
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16. Certain Fees, Costs, Expenses and Expenditures. Borrower
will pay all of the Agent's expenses in connection with the review, preparation,
negotiation, documentation and closing of this Amendment and the consummation of
the transactions contemplated hereunder, including without limitation, costs and
fees and expenses of counsel retained by Agent and all fees related to filings,
recording of documents and searches, whether or not the transactions
contemplated hereunder are consummated. Nothing contained herein shall limit in
any manner whatsoever any Lender's or Agent's right to reimbursement under any
of the Loan Documents.
17. Communications and Notices. All notices, requests and
other communications made or given in connection with this Amendment shall be
made in accordance with the provisions of the Loan Agreement.
18. Time of Essence. Time is of the essence of this Amendment.
19. No Waiver. Except as otherwise provided herein, nothing
contained and no actions taken by Agent in connection herewith shall constitute
nor shall they be deemed to be a waiver, release or amendment of or to any
rights, remedies, or privileges afforded to Agent under the Loan Documents or
under the UCC. Nothing herein shall constitute a waiver by Agent of Borrower's
or any Guarantor's compliance with the terms of the Loan Documents, nor shall
anything contained herein constitute an agreement by Agent to enter into any
further amendments with Borrower and Guarantors.
20. Inconsistencies. To the extent of any inconsistencies
between the terms and conditions of this Amendment and the terms and conditions
of the Loan Documents, the terms and conditions of this Amendment shall prevail.
All terms and conditions of the Loan Documents not inconsistent herewith shall
remain in full force and effect and are hereby ratified and confirmed by
Borrower and Guarantors.
21. Binding Effect. This Amendment and all rights and powers
granted hereby will bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
22. Severability. The provisions of this Amendment and all
other Loan Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.
23. No Third Party Beneficiaries. The rights and benefits of
this Amendment and the Loan Documents shall not inure to the benefit of any
third party.
24. Modifications. No modifications of this Amendment or any
of the Loan Documents shall be binding or enforceable unless in writing and
signed by or on behalf of the party against whom enforcement is sought.
25. Holidays. If the day provided herein for the payment of
any amount or the taking of any action falls on a Saturday, Sunday or public
holiday at the place for payment or action, then the due date for such payment
or action will be the next succeeding Business Day.
26. Law Governing. This Amendment has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth, without regard to
any rules or principles regarding conflicts of law or any rule or canon of
construction which interprets agreements against the draftsman.
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27. Headings. The headings of the Articles, Sections,
paragraphs and clauses of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.
28. Counterparts; Facsimile Signatures. This Amendment may be
executed in any number of counterparts, all of which taken together constitute
one and the same instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. Any signature delivered via facsimile
shall be deemed an original signature hereto.
29. Joint and Several. The obligations of Borrower and
Guarantors under this Amendment shall be joint and several obligations.
30. Waiver of Right to Trial by Jury. BORROWER, GUARANTORS AND
THE LENDER GROUP WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THIS AMENDMENT, (b) ARISING UNDER ANY OF
THE OTHER LOAN DOCUMENTS OR (c) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF BORROWER, GUARANTORS OR ANY MEMBER OF THE LENDER
GROUP WITH RESPECT TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BORROWER, GUARANTORS AND THE LENDER GROUP AGREE
AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF BORROWER, GUARANTORS AND THE LENDER GROUP TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. BORROWER AND GUARANTORS ACKNOWLEDGE THAT
THEY HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION,
THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT THEY
VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
31. Release. Borrower and Guarantors hereby fully, finally and
forever acquit, quitclaim, release and discharge Agent and Lender and their
officers, directors, employees, agents, successors and assigns of and from any
and all obligations, claims, liabilities, damages, demands, debts, liens,
deficiencies, cause or causes of action to, or for the benefit (whether directly
or indirectly) of Borrower or any Guarantor, at law or in equity, known or
unknown, contingent or otherwise, asserted or unasserted, whether now known or
hereafter discovered, whether statutory, in contract or in tort, as well as any
other kind or character of action now held, owned or possessed (whether directly
or indirectly) by Borrower or any Guarantor on account of, arising out of,
related to or concerning, whether directly or indirectly, proximately or
remotely (i) the negation, review, preparation or documentation of the Loan
Agreement (including, without limitation, this Amendment) or any of the other
Loan Documents or any other documents or agreements executed in connection
therewith, (ii) the administration of the Loan Agreement and the other Loan
Documents, (iii) the enforcement, protection or preservation of Agent's and
Lender's rights under the Loan Agreement or any of the other Loan Documents or
any other documents or agreements executed in connection therewith, and/or (iv)
any action or inaction by Agent or Lender in connection with any such documents,
instruments or agreements.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be legally bound hereby.
[CORPORATE SEAL] BORROWER:
--------
TODAY'S MAN, INC., a Pennsylvania
corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, Executive Vice President
& Chief Financial Officer
[CORPORATE SEAL] GUARANTORS:
----------
BENMOL, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
[CORPORATE SEAL] D & L, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
[CORPORATE SEAL] XXXX & XXXX, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
(CORPORATE SEAL] XXXXXXXXX.XXX INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
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LENDERS:
--------
STANDARD FEDERAL BANK NATIONAL ASSOCIATION,
formerly known as Michigan National Bank,
as successor in interest to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as
agent
By: /s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx, Vice President
AGENT:
------
STANDARD FEDERAL BANK NATIONAL ASSOCIATION,
formerly known as Michigan National Bank, as
successor in interest to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as
agent
By: /s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx, Vice President
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CONSENT AND AGREEMENT
The undersigned acknowledges and consents to that certain Fifteenth
Amendment and Modification to Loan and Security Agreement (the "Amendment")
between Today's Man, Inc. ("Borrower"), the Guarantors defined therein and
Standard Federal Bank National Association, formerly known as Michigan National
Bank, as successor in interest to Mellon Bank, N.A., as Lender and in its
capacity as Agent for the Lenders ("Standard"). The undersigned further
acknowledges and agrees that none of the terms of the Amendment will in any way
adversely affect his respective obligations or the rights of Standard under that
certain Mortgage and Security Agreement dated November 29, 2000 (the "Mortgage")
or that certain Assignment of Rents, Leases and Agreement of Sale dated February
1, 2001 (the "Assignment") executed by the undersigned in favor of Standard, all
of the terms of which are hereby ratified and confirmed. The undersigned
acknowledges receipt of a copy of the Amendment and the documents executed in
connection therewith and acknowledges and agrees that he has had the opportunity
to review the same. The undersigned further acknowledges that the liabilities
and obligations of the Borrower incurred in connection with the Amendment and
the documents executed in connection therewith shall be entitled to the benefits
of and shall be part of the obligations secured by the Loan Documents to which
the undersigned is a party. The undersigned warrants to Lender that as of the
date hereof the undersigned has no defense or counterclaim whatsoever to any
action or proceeding that may be brought to enforce Standard's or any Lender's
rights and remedies under the Loan Documents to which the undersigned is a
party. The undersigned acknowledges and agrees that the obligations of the
Borrower under the foregoing Amendment, including without limitation, the
obligations with respect to the Revolving Credit Facility, shall be secured by
the Mortgage and the Assignment.
The undersigned agrees that he has received good and valuable
consideration for entering into the Mortgage and the Assignment. The undersigned
further agrees that Standard may modify, amend, increase, extend, renew or
supplement any of the Obligations or the Loan Documents, all without notice to
or further consent from the undersigned, without affecting the obligations of
the undersigned to Standard under the Mortgage or the Assignment.
The undersigned waives any and all rights undersigned may have at any
time (whether arising directly or indirectly, by operation of law or contract)
to assert any claim against Borrower or any other guarantor on account of
payments made or obligations performed under the Mortgage or the Assignment,
including, without limitation, any and all rights of subrogation, reimbursement,
exoneration, contribution or indemnity.
Capitalized terms used herein and not otherwise defined shall have such
meaning as provided in the Amendment.
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IN WITNESS WHEREOF, the undersigned have executed this Consent and
Agreement intending to be legally bound hereby, effective as of November 27,
2002.
/s/Xxxxx X. Xxxxxxx /s/Xxxxx Xxxx (SEAL)
--------------------------- ----------------------------
WITNESS XXXXX XXXX
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