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Exhibit 10.9
WAIVER
WAIVER, dated as of October 22, 1998 (this "Waiver"), to the Master
Loan and Security Agreement, dated as of May 15, 1998 (as amended, supplemented
or otherwise modified prior to the date hereof, the "Loan Agreement"), between
XXXXXXXX CAPITAL CORPORATION, a Georgia corporation (the "Borrower"), and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York Banking corporation (the
"Lender").
RECITALS
The Borrower has requested the Lender to agree to waive certain
defaults under the Loan Agreement as set forth in this Waiver. The Lender is
willing to agree to such waivers, but only on the terms and subject to the
conditions set forth in this Waiver.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Lender hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined
in the Loan Agreement are used herein as therein defined.
2. Waiver. The Lender hereby waives any Default or Event of
Default that may exist under Sections 6.22(b), 7.10(a), 8(d) (as it relates to
Section 6.22(b)) and 8(e)(i) (as it relates to Section 7.10(a)) of the Loan
Agreement; provided, that:
(i) this Waiver shall automatically terminate, without
notice, upon the earliest to occur of: (A) 9:00 a.m., New York City
time, on the tenth Business Day following the date hereof, (B) the
occurrence of any other Default or Event of Default under the Loan
Agreement (excluding a Default or Event of Default under Section 8(f)
of the Loan Agreement that relates to Indebtedness of the Borrower
owing to Xxxxxxx Xxxxx Mortgage Capital, Inc. ("Xxxxxxx"), unless and
until Xxxxxxx has accelerated its Indebtedness, given notice of its
intention to exercise its remedies or taken any action with respect to
the foreclosure or other disposition of the collateral securing such
Indebtedness), (C) receipt by the Borrower of notice from the Lender
to the Borrower that the Borrower has failed to comply with the
covenant contained in Section 3 of this Waiver and (D) the date on
which the Tangible Net Worth of the Borrower shall be less than
$55,000,000; and
(ii) notwithstanding the foregoing, the Lender shall have
no obligation to make new Advances pursuant to the Loan Agreement
unless and until the Borrower is in compliance with Sections 6.22(b)
and 7.10(a) of the Loan Agreement and satisfies all other applicable
conditions to the making of new Advances set forth in the Loan
Agreement.
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3. Inspection Rights. Without limiting the Borrower's
obligations under the Loan Agreement, the Borrower hereby agrees to cooperate
fully with the Lender and assist the Lender in valuing all assets and assessing
the financial condition of the Borrower, including without limitation giving
the Lender immediate and full access to all files and records of the Borrower.
4. Effectiveness. This Waiver shall become effective upon
execution by the Lender and receipt by the Lender of evidence satisfactory to
the Lender that this Waiver has been executed and delivered by the Borrower.
5. Representations and Warranties. To induce the Lender to enter
into this Waiver, the Borrower hereby represents and warrants to the Lender
that, after giving effect to the waivers provided for herein, the
representations and warranties contained in the Loan Agreement and the other
Loan Documents will be true and correct in all material respects as if made on
and as of the date hereof and that no Default or Event of Default will have
occurred and be continuing.
6. Reservation of Rights. The Lender hereby advises the Borrower
that, other than expressly provided herein, the Lender does not waive any
Default or Event of Default which may exist, and that the current non-exercise
of rights, remedies, powers and privileges by the Lender under the Loan
Documents and applicable law with respect to such Defaults or Events of
Default, if any, shall not be, and shall not be construed as, a waiver thereof,
and the Lender reserves its rights (i) fully to invoke any and all such rights,
remedies, powers and privileges under the Loan Documents and applicable law at
any time the Lender deems appropriate in respect of any Defaults or Events of
Default that may exist, (ii) to refuse to make available any further extensions
of credit except in strict accordance with the terms of the Loan Documents and
(iii) to require that all Advances bear interest at the rates specified in the
Loan Agreement. Nothing in this Waiver, and no extension of credit made by the
Lender on or after the date hereof, shall be construed as an acknowledgment or
determination by the Lender that no Default or Event of Default has occurred or
is continuing.
7. Counterparts. This Waiver may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. Applicable Law. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW RULES.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered as of the day and year first above written.
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Lender
By:
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Name:
Title:
AGREED TO AND ACCEPTED BY:
XXXXXXXX CAPITAL CORPORATION
By:
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Name:
Title:
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