EXHIBIT 10.1
SECOND MODIFICATION TO LOAN DOCUMENTS
THIS SECOND MODIFICATION TO LOAN DOCUMENTS (this "Modification") is made
and entered into effective as of October 1, 2008, by and among KABLE MEDIA
SERVICES, INC., a Delaware corporation ("KMS"), KABLE NEWS COMPANY, INC., an
Illinois corporation ("KNC"), KABLE DISTRIBUTION SERVICES, INC., a Delaware
corporation ("KDS"), KABLE NEWS EXPORT, LTD., a Delaware corporation ("KEXP"),
KABLE NEWS INTERNATIONAL, INC., a Delaware corporation ("XXXX"), XXXXX
FULFILLMENT SERVICES, INC., a Delaware corporation ("KFS"), KABLE FULFILLMENT
SERVICES OF OHIO, INC., a Delaware corporation ("KFSO"), PALM COAST DATA HOLDCO,
INC., a Delaware corporation ("PCD"), PALM COAST DATA LLC, a Delaware limited
liability company ("PCD LLC"), KABLE PRODUCT SERVICES, INC., a Delaware
corporation, formerly known as Kable Products Services, Inc. ("KPS"), KABLE
SPECIALTY PACKAGING SERVICES LLC, a Delaware limited liability company ("KSPS"),
and KABLE STAFFING RESOURCES LLC, a Delaware limited liability company ("KSR")
(collectively, the "Borrowers"), and LASALLE BANK NATIONAL ASSOCIATION, a
national banking association, whose address is 000 Xxxxx Xx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Lender").
W I T N E S S E T H:
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A. Lender and KMS, KNC, KDS, KEXP, XXXX, KFS, KFSO, PCD and PCD LLC
(collectively, the "Initial Borrowers") heretofore have been parties to the
following agreements, documents and instruments: (a) Second Amended and Restated
Loan and Security Agreement dated as of January 16, 2007, as amended by that
certain First Modification to Loan Documents dated as of January 18, 2008
("First Modification") made by Initial Borrowers, KPS and Lender (together, the
"Loan Agreement"); (b) Facility A Revolving Note dated as of January 16, 2007 in
the principal amount of up to Thirty Five Million and 00/100 Dollars
($35,000,000) made by Initial Borrowers in favor of Lender ("Facility A
Revolving Note"); (c) Facility B Term Note dated as of January 16, 2007 in the
principal amount of Three Million Thirty Six Thousand and 00/100 Dollars
($3,036,000) made by Initial Borrowers in favor of Lender ("Facility B Term
Note"); (d) Amended and Restated Facility C CapEx Note dated as of January 18,
2008 in the principal amount of Four Million Five Hundred Thousand and 00/100
Dollars ($4,500,000) made by Initial Borrowers and KPS in favor of Lender
("Facility C CapEx Note"); (e) Facility D Revolving Note dated as of January 16,
2007 in the principal amount of up to Ten Million and 00/100 Dollars
($10,000,000) made by Initial Borrowers in favor of Lender ("Facility D
Revolving Note", together with the Facility A Revolving Note, Facility B Term
Note, Facility C CapEx Note and with all modifications, supplements, amendments,
restatements or extensions thereto or thereof, being referred to, collectively,
as the "Notes"); and (f) the balance of the other Loan Documents (as defined in
the Loan Agreement), documents and instruments delivered in connection
therewith.
B. The Initial Borrowers and KPS have requested that Lender consent to the
following proposed transactions (collectively, the "Transactions"): (i) the
formation of KSPS and KSR as wholly-owned subsidiaries of KMS; (ii) KSPS and KSR
purchasing substantially all the assets of Service Parts Supply Corp., an Ohio
corporation, and Resource One Staffing, LLC, an Ohio limited liability company,
respectively (the "Acquisitions"); (iii) KSPS and KSR joining into and becoming
parties to the Loan Agreement and the other Loan Documents as Borrowers and as
grantors of blanket liens on their Collateral to secure the Obligations; (iv)
KSPS and KSR borrowing under the Loan Agreement to fund a portion of the
purchase price of the Acquisitions; (v) KMS providing a guaranty of certain
mortgage obligations assumed by El Dorado Utilities, Inc., a New Mexico
corporation, and Affiliate of the Borrowers (the "Fairfield Landlord"), in
connection with the Fairfield Landlord's purchase of an approximate 191,000
square foot warehouse facility located at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx
(the "Fairfield Warehouse") as part of the transactions contemplated by the
Acquisitions; (vi) the Fairfield Landlord leasing the Fairfield Warehouse to
KSPS on the terms and conditions contained in that certain lease between the
Fairfield Landlord and KSPS; (vii) KSR assuming Resource One Staffing, LLC's
lease of office space at 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxx; and (viii) the
modification of the definition of EBITDA.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Borrowers and Lender hereby agree as follows:
1. DEFINITIONS. Capitalized words and phrases used herein without
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definition shall have the respective meanings ascribed to such words and phrases
in the Loan Agreement.
2. AMENDMENTS TO THE LOAN AGREEMENT
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2.1 Definitions.
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(a) Substituted Definitions. The following definitions contained in
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Section 1.1 of the Loan Agreement are hereby amended and restated as
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follows:
"Change of Control" shall mean the occurrence of any of the
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following events: (a) KMS shall cease to own and control, directly or
indirectly, 100% of the outstanding Capital Securities of KDS; (b) KDS
shall cease to, directly or indirectly, own and control 100% of each
class of the outstanding Capital Securities of KEXP and XXXX or of the
surviving or resulting corporation in the event of their merger or
consolidation; (c) KMS shall cease to own and control, directly or
indirectly, 100% of the outstanding Capital Securities of KNC; (d) KNC
shall cease to, directly or indirectly, own and control 100% of each
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class of the outstanding Capital Securities of KFS and KFSO or of the
surviving or resulting corporation in the event of their merger or
consolidation; (e) KMS shall cease to own and control, directly or
indirectly, 100% of the outstanding Capital Securities of KSR; (f) KMS
shall cease to own and control, directly or indirectly, 100% of the
outstanding Capital Securities of KSPS; or (g) the granting by KMS,
directly or indirectly, of a security interest in its ownership
interest in any of the Borrowers, which could result in a change in
the identity of the individuals or entities in control of such
Borrower. For the purpose hereof, the terms "control" or "controlling"
shall mean the possession of the power to direct, or cause the
direction of, the management and policies of the Borrower(s) by
contract or voting of securities or ownership interests.
"Capital Expenditures" shall mean all expenditures (including
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Capitalized Lease Obligations) which, in accordance with GAAP, would
be required to be capitalized and shown on the consolidated balance
sheet of the Borrowers, but excluding expenditures made in connection
with (a) the replacement, substitution or restoration of assets to the
extent financed (i) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the assets
being replaced or restored, or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation of the
assets being replaced, or (b) the acquisition by KSPS of the assets of
SPS1 and by KSR of the assets of R1S.
"EBITDA" shall mean, for any specified period, the sum of the
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following for such period: (a) Net Income, plus (b) Interest Charges;
plus (c) federal and state income taxes (including the Illinois
replacement tax); plus (d) Depreciation; plus (e) non-cash management
compensation expense; plus (f) all other non-cash charges, in each
case to the extent included in determining Net Income for such period.
For purposes of determining compliance with Section 10.3 of this
Agreement as of the end of any fiscal quarter, EBITDA for the 12-month
period ending at the end of any such fiscal quarter shall include on a
pro-forma basis EBITDA of KSPS and KSR for any portion of such
12-month period that is prior to the acquisition by KSPS of the assets
of SPS1 and by KSR of the assets of R1S. For the purpose hereof,
EBITDA of KSPS and KSR for the 12-month period preceding such
acquisition shall be deemed to be $78,083.50 per month, accumulated
ratably over such 12-month period.
"Permitted Business" shall mean any business conducted by one or
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more of the Borrowers on the closing date of the Second Modification
and all other businesses reasonably related thereto, included but not
limited to staffing services and packaging, fulfillment and assembly
services.
(b) Substituted Subsection (j) of Eligible Account. Subsection (j) of
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the definition of "Eligible Account" and "Eligible Accounts" in Section 1.1
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of the Loan Agreement is hereby amended and restated as follows:
(j) it is an Account stated in a monthly statement or an Account
invoiced (and dated as of such date) and, in each case, sent to the
Account Debtor thereof within the Borrowers' normal monthly billing
cycle, but in no event later than thirty (30) days after the shipment
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and delivery to the Account Debtor of the Goods giving rise thereto or
the performance of the services giving rise thereto, and (i) as to KDS
and its Subsidiaries which is due and payable within ninety (90) days
past the original invoice date (otherwise known as the monthly
statement date) thereof, (ii) in the case of Accounts pertaining to
KPS, KSPS, KSR, KNC, KFS, KFSO and PCD LLC the Account is evidenced by
an invoice which is due and payable within forty-five (45) days after
the invoice date and is no more than sixty (60) days past the due date
of the invoice, (iii) in the case of Accounts pertaining to KSPS and
KSR which are due and payable within sixty (60) days past the original
invoice date (otherwise known as the monthly statement date) thereof,
and (iv) in the case of Eligible Foreign Accounts, is evidenced by an
invoice which is due and payable within one hundred and twenty (120)
days after the invoice date, in each case according to the original
terms of sale;
(c) New Definitions. The following definitions shall be inserted
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alphabetically in Section 1.1 of the Loan Agreement:
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"KSR" shall mean Kable Staffing Resources LLC, a Delaware limited
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liability company.
"KSPS" shall mean Kable Specialty Packaging Services LLC, a
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Delaware limited liability company.
"KSPS Lease" means that certain Lease Agreement dated November 7,
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2008 by and between KSPS, as tenant and El Dorado Utilities, Inc., a
New Mexico corporation, as landlord, for the property located at 0000
Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx.
"R1S" shall mean Resource One Staffing, LLC, an Ohio limited
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liability company.
"Second Modification" shall mean the Second Modification to Loan
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Documents dated as of October 1, 2008 among the Borrowers and the
Lender.
"SPS1" shall mean Service Parts Supply Corp., an Ohio
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Corporation.
2.2 The last sentence of Section 2.1(a) of the Loan Agreement, captioned
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"Facility A Loan Commitment," is hereby amended and restated to read in its
entirety as follows:
The Facility A Loans shall be used by the Borrowers for the
purpose of refinancing an existing line of credit, to provide for
short term working capital needs and fund the acquisition of: PCD and
PCD, LLC; and the assets of SPS1 and R1S.
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2.3 The first sentence of Section 8.3 of the Loan Agreement, captioned
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"Compliance With Laws," is hereby amended and restated to read in its entirety
as follows:
Each Borrower shall use the proceeds of the Loans for working
capital, the acquisition of: PCD and PCD, LLC; and the Acquisition of
assets of SPS1 and R1S, and other general corporate or business
purposes not in contravention of any requirements of law and not in
violation of this Agreement, and shall comply in all respects,
including the conduct of its business and operations and the use of
its properties and assets, with all applicable laws, rules,
regulations, decrees, orders, judgments, licenses and permits, except
where failure to comply would not reasonably be expected to have a
Material Adverse Effect.
2.4 Section 9.11 of the Loan Agreement, captioned "Use of Proceeds," is
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hereby amended and restated to read in its entirety as follows:
9.11 Use of Proceeds. No Borrower or any of such Borrower's
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Subsidiaries or Affiliates shall use any portion of the proceeds of
the Loans, either directly or indirectly, for the purpose of
purchasing any securities underwritten by Bank of America Securities,
Inc., an Affiliate of the Lender.
2.5 KSPS and KSR are hereby added to the notice provision under Borrowers
and the notices to Lender and counsel to Borrowers are hereby amended and
restated to read in its entirety as follows:
with a courtesy copy to: Blank Rome LLP
One Xxxxx Square
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Lender: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxxxxx Cavaianai
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
3. CONSENTS AND WAIVER UNDER LOAN AGREEMENT
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3.1 Consents and Waiver. On the terms and subject to the conditions
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contained herein, the Lender hereby (i) consents to the Transactions and waives
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any violations of the Loan Agreement that would otherwise apply, including the
covenants contained in Sections 9.1, 9.3 and 9.4 and the use of proceeds to fund
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a portion of the purchase price of the Acquisitions and (ii) approves the
creation of KSPS and KSR as subsidiaries of KMS. Lender hereby reserves all
rights of the Lender with respect to any future transactions, whether similar in
nature or type to the Transactions. Borrowers hereby agree strictly to adhere to
the terms and conditions contained in the Loan Agreement.
4. ADDITION OF NEW BORROWERS TO THE LOAN DOCUMENTS.
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4.1 Addition of KSPS and KSR as a Party. The Borrowers, including KSPS and
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KSR, hereby agree that from and after the date hereof KSPS and KSR are parties
to, and bound by, the Loan Agreement and all other Loan Documents, as amended
hereby. All references in the Loan Documents to Borrowers shall hereafter
include KSPS and KSR. KSPS and KSR each as a "Borrower", agree and confirm that
as a result of becoming a party to, and bound by, the Loan Agreement that KSPS
and KSR have granted to Lender a security interest in and lien on all the
Collateral (as defined in Section 1.1 of the Loan Agreement) of KSPS and KSR.
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5. REPRESENTATIONS AND WARRANTIES.
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5.1 Organization. Each Borrower is a corporation or limited liability
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company duly organized, existing and in good standing under the laws of the
jurisdiction of its organization with full and adequate power to carry on and
conduct its business as presently conducted. Each Borrower is duly licensed or
qualified in all foreign jurisdictions wherein the nature of its activities
require such qualification or licensing, except for such jurisdictions where the
failure to so qualify would not have a Material Adverse Effect. The
organizational documents and resolutions of the Initial Borrowers and KPS
delivered in connection with the closing of the Loan Agreement have not been
changed or amended since their delivery to the Lender except as set forth in the
First Modification and Exhibit A hereto. The exact legal name of each Borrower
is as set forth in the preamble of this Modification, and except as set forth on
Schedule 7.1 to the Loan Agreement, as of the date hereof the Borrowers do not
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conduct, nor have they during the last five (5) years conducted, business under
any other name or trade name. Each Borrower will not change its name, its
organizational identification number, if it has one, its type of organization,
its jurisdiction of organization or other legal structure, except as permitted
by the Loan Agreement.
5.2 Authorization. The Borrowers have full right, power and authority to
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enter into this Modification, to borrow monies under the Loan Agreement, as
amended hereby, and to perform their obligations under the Loan Agreement as
amended hereby.
5.3 No Conflicts. The execution and delivery of this Modification and the
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performance by each Borrower of its obligations under the Loan Agreement, as
amended hereby, do not and will not violate or contravene any provision of law
in any material respect or of any of the organizational documents of the
Borrowers.
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5.4 Validity and Binding Effect. The Loan Agreement, as amended hereby, is
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a legal, valid and binding obligation of each Borrower, enforceable against each
Borrower in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
5.5 Compliance with Loan Agreement. The representations and warranties set
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forth in Section 7 of the Loan Agreement, as amended hereby, including as
amended by the Revisions to Schedules 7.1 and 7.23, copies of which are attached
hereto and made a part hereof, are true and correct with the same effect as if
such representations and warranties had been made on the date hereof, with the
exception that all references to the financial statements shall mean the
financial statements most recently delivered to Lender and except for such
changes as are specifically permitted under the Loan Agreement. In addition, as
of the date hereof, each Initial Borrower has complied with and each Borrower is
in compliance with all of the covenants set forth in the Loan Agreement, as
amended hereby, including, but not limited to, those set forth in Section 8,
Section 9 (including as amended by the Revision to Schedule 9.1 and Revision to
Schedule 9.3 attached hereto) and Section 10 thereof.
5.6 No Event of Default. As of the date hereof, no Event of Default or
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Unmatured Event of Default exists under Section 11 of the Loan Agreement, as
amended hereby.
5.7 Release and Waiver. As of the date hereof, no Borrower possesses (or
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has knowledge of) any claims, defenses, offsets or counterclaims against Lender
(or its officers, directors, members, shareholders, employees or agents)
relating to this Modification or the Loan Documents. In the event there exists
on the date of this Agreement, any facts that would give rise to any claim,
defense, offset or counterclaim against or with respect to the enforcement of
this Modification or the Loan Documents, each Borrower hereby unconditionally,
irrevocably, and unequivocally waives and fully releases Lender (and its
officers, directors, shareholders, employees or agents) of any such claim,
defense, offset or counterclaim to the same extent as if such claims were the
subject of a lawsuit adjudicated to conclusion and dismissed therein with
prejudice.
5.8 Omnibus Amendment. Each of the Loan Documents shall be deemed amended
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to give effect to the provisions of this Modification without need for
referencing each of the Loan Documents by name. Without limiting the generality
of the foregoing, Borrowers and Lender acknowledge that the term "Loan
Documents" shall mean all of the Loan Documents as modified by this Modification
(and any notes, amendments and agreements delivered in connection herewith).
Additionally, as used in the other Loan Documents, the term "Documents" and/or
"Loan Documents" shall now be deemed to include this Modification and any other
documents, instruments or agreements executed in connection herewith.
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6. CONDITIONS PRECEDENT. This Modification shall become effective as of
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the date above first written after receipt by Lender of the following:
6.1 Modification. This Modification executed by each Borrower and Lender.
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6.2 Resolutions. A certified copy of resolutions of the Board of Directors
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and/or shareholders, or members and/or mangers of, as applicable, of each
Borrower authorizing the execution, delivery and performance of this
Modification and the Loan Documents.
6.3 Other Documents. Such other documents, certificates, resolutions and/or
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opinions of counsel as Lender may request.
7. GENERAL.
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7.1 Governing Law; Severability. This Modification shall be construed in
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accordance with and governed by the laws of the State of Illinois. Wherever
possible each provision of the Loan Agreement and this Modification shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Loan Agreement and this Modification shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of the Loan Agreement and this
Modification.
7.2 Successors and Assigns. This Modification shall be binding upon each
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Borrower and Lender and their respective successors and assigns, and shall inure
to the benefit of such Borrower and Lender and the successors and assigns of
Lender.
7.3 References to Loan Agreement. This Modification amends the Loan
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Agreement, as in effect on the date hereof. Each reference in the Loan Agreement
to "this Agreement", "hereunder", "hereof", or words of like import, and each
reference to the Loan Agreement in any and all instruments or documents
delivered in connection therewith, shall be deemed to refer to the Loan
Agreement, as amended hereby.
7.4 Expenses. Borrowers shall pay all costs and expenses in connection with
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the preparation of this Modification and other related loan documents,
including, without limitation, reasonable attorneys' fees and time charges of
attorneys who may be employees of Lender. Borrowers shall pay any and all stamp
and other taxes, UCC search fees, filing fees and other costs and expenses in
connection with the execution and delivery of this Modification and the other
instruments and documents to be delivered hereunder, and agrees to save Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such costs and expenses.
7.5 Counterparts. This Modification may be executed in any number of
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counterparts, all of which shall constitute one and the same agreement.
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7.6 Jury Waiver. BORROWERS AND LENDER IRREVOCABLY WAIVE ANY RIGHT TO TRIAL
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BY JURY IN ANY ACTION OR PROCEEDING: (a) TO ENFORCE OR DEFEND ANY RIGHTS UNDER
OR IN CONNECTION WITH THIS MODIFICATION OR ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH; OR (b) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR
RELATED TO THIS MODIFICATION OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Modification as of the
date first above written.
BORRROWERS:
KABLE MEDIA SERVICES, INC., KABLE NEWS COMPANY, INC.,
a Delaware corporation an Illinois corporation
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
Vice President Senior Vice President
KABLE NEWS EXPORT, LTD., KABLE NEWS INTERNATIONAL, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
Vice President Treasurer
KABLE FULFILLMENT SERVICES, INC., KABLE FULFILLMENT SERVICES OF
a Delaware corporation OHIO, INC., a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
Vice President Vice President
KABLE DISTRIBUTION SERVICES, INC., PALM COAST DATA LLC,
a Delaware corporation a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
Senior Vice President Vice President
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PALM COAST DATA HOLDCO, INC., KABLE PRODUCT SERVICES, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx X. Pizza By: /s/ Xxxxx Xxxxxxxx
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Xxxxx X. Pizza, Vice President Xxxxx Xxxxxxxx,
Executive Vice President Finance
KABLE SPECIALTY PACKAGING SERVICES LLC, KABLE STAFFING RESOURCES LLC,
a Delaware limited liability company a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Vice President, Finance Vice President, Finance
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxxxxxxx Cavaianai
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Xxxxxxxxxxx Cavaianai
Senior Vice President
JOINDER BY JUNIOR LENDER
The undersigned, being the Junior Lender who executed the Subordination
Agreement dated as of January 16, 2007 ("Subordination Agreement") by and
between Junior Lender and LaSalle Bank National Association ("Senior Lender")
hereby expressly: (a) consents to the execution by Borrowers and Senior Lender
of this Amendment; (b) acknowledges that Borrowers' obligations includes all of
the obligations and liabilities owing from time to time by Borrowers to Senior
Lender, including, but not limited to, the obligations and liabilities of
Borrowers to Senior Lender under and pursuant to the Loan Agreement, as amended
from time to time; (c) acknowledges that Junior Lender does not have any
set-off, defense or counterclaim to the payment or performance of any of the
obligations of Borrowers under the Loan Agreement or Junior Lender under its
Subordination Agreement; (d) reaffirms, assumes and binds itself in all respects
to all of the obligations, liabilities, duties, covenants, terms and conditions
that are contained in its Subordination Agreement; (e) agrees that all such
obligations and liabilities under its Subordination Agreement shall continue in
full force and that the execution and delivery of this Amendment to, and its
acceptance by, Senior Lender shall not in any manner whatsoever (i) impair or
affect the liability of Junior Lender to the Senior Lender under its
Subordination Agreement, (ii) prejudice, waive, or be construed to impair,
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affect, prejudice or waive the rights and abilities of Senior Lender at law, in
equity or by statute, against Junior Lender pursuant to its Subordination
Agreement, and/or (iii) release or discharge, nor be construed to release or
discharge, any of the obligations and liabilities owing to the Senior Lender by
Junior Lender under its Subordination Agreement; and (f) represents and warrants
that each of the representations and warranties made by Junior Lender in any of
the documents executed in connection with the Loans remain true and correct as
of the date hereof.
Dated: October 1, 2008.
AMREP CORPORATION,
an Oklahoma corporation
By: /s/ Xxxxx X. Pizza
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Xxxxx X. Pizza, Vice President
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