terms set forth in the agreement attached
hereto as Exhibit A (the "Sale and Leaseback Agreement");
WHEREAS, notwithstanding the provisions of Section 13(d)(iii) of the Loan
Agreement and any other provisions of the Loan Agreement and the Other
Agreements prohibiting the Morgan Sale and Leaseback Transaction, Borrowers and
the other Loan Parties have requested that Agent and Lender consent to the
Morgan Sale and Leaseback Transaction; and
WHEREAS, in connection therewith, Borrowers have requested that Agent and Lender
waive the provisions of Section 2(c)(ii) of the Loan Agreement solely to the
extent they require prepayment of the Liabilities with the proceeds of the
Morgan Sale and Leaseback Transaction.
NOW THEREFORE, in consideration of the foregoing recital, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers, the other Loan Parties,
Agent and Lender hereby agree as follows:
SECTION 1.
LIMITED CONSENT.
SUBJECT TO THE CONDITIONS PRECEDENT SET
FORTH IN SECTION 3 HEREOF, AGENT AND LENDER HEREBY CONSENT TO THE MORGAN SALE
AND LEASEBACK TRANSACTION; PROVIDED THAT THE SALE AND LEASEBACK TRANSACTION IS
CONSUMMATED ON THE TERMS AND CONDITIONS SET FORTH IN THE SALE AND LEASEBACK
AGREEMENT.
SECTION 2.
LIMITED WAIVER.
SUBJECT TO THE CONDITIONS PRECEDENT SET
FORTH IN SECTION 3 HEREOF, AGENT AND LENDER HEREBY WAIVE THE PROVISIONS OF
SECTION 2(C)(II) OF THE LOAN AGREEMENT SOLELY TO THE EXTENT THEY REQUIRE
PREPAYMENT OF THE LIABILITIES WITH THE PROCEEDS OF THE MORGAN SALE AND LEASEBACK
TRANSACTION.
SECTION 3.
EFFECTIVENESS.
THE EFFECTIVENESS OF THIS CONSENT AND WAIVER
IS SUBJECT TO THE SATISFACTION OF EACH THE FOLLOWING CONDITIONS PRECEDENT:
(A)
THIS CONSENT AND WAIVER SHALL HAVE BEEN DULY EXECUTED AND
DELIVERED BY BORROWERS, LOAN PARTIES, AGENT AND EACH LENDER; AND
(B)
THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS.
SECTION 4.
REPRESENTATIONS AND WARRANTIES.
IN ORDER TO INDUCE AGENT AND
EACH LENDER TO ENTER INTO THIS CONSENT AND WAIVER, EACH LOAN PARTY HEREBY
REPRESENTS AND WARRANTS TO AGENT AND EACH LENDER, WHICH REPRESENTATIONS AND
WARRANTIES SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS CONSENT AND WAIVER,
THAT:
(A)
ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LOAN
AGREEMENT AND IN EACH OTHER AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE DATE HEREOF AFTER GIVING EFFECT TO THIS CONSENT AND WAIVER,
EXCEPT TO THE EXTENT THAT ANY SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY
RELATE TO AN EARLIER DATE;
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY LOAN PARTIES OF THIS
CONSENT AND WAIVER HAS BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION
REQUIRED ON THEIR PART AND THIS CONSENT AND WAIVER, AND THE LOAN AGREEMENT IS
THE LEGAL, VALID AND BINDING OBLIGATION OF LOAN PARTIES ENFORCEABLE AGAINST LOAN
PARTIES IN ACCORDANCE WITH ITS TERMS, EXCEPT AS ITS ENFORCEABILITY MAY BE
AFFECTED BY THE EFFECT OF BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
OTHER
2
SIMILAR LAWS NOW OR HEREAFTER IN EFFECT RELATING TO OR AFFECTING THE RIGHTS OR
REMEDIES OF CREDITORS GENERALLY;
(C)
NEITHER