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EXHIBIT 10.9
WAIVER AND CONSENT AGREEMENT
THIS WAIVER AND CONSENT AGREEMENT ("this Agreement"), effective as of December
31, 2000, but executed on March 28, 2001, is entered into by XXXX XXXXXXXX
TRANSPORTATION, INC., a Delaware corporation (the "Borrower"), and AMSOUTH BANK,
an Alabama banking corporation (the "Lender").
RECITALS
A. The Borrower and the Lender have entered into a Credit Agreement
dated as of April 1, 1994, as amended (the "Credit Agreement").
B. The Borrower has requested that the Lender enter into this
Agreement in order to grant certain consents and waivers with respect to the
Credit Agreement as hereinafter described.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements of the parties hereto:
1. The parties agree that capitalized terms used in this
Agreement and not otherwise defined herein have the respective meanings
attributed thereto in the Credit Agreement.
2. The Lender consents to and waives the failure of the Borrower
to:
(a) maintain a ratio of Total Liabilities to Tangible Net Worth
plus subordinated debt of not greater than 2.0 to 1.0 for the fiscal year ending
December 31, 2000, as required by Section 6.07 of the Credit Agreement, without
which consent the Borrower would be in default under Article VII(a) of the
Credit Agreement; and
(b) maintain a ratio of Gross Cash Flow to Current Maturities of
Long-Term Debt less than 1.25 to 1.0 for the fiscal year ending December 31,
2000 as required by Section 6.09 of the Credit Agreement, without which consent
the Borrower would be in default under Article VII(a) of the Credit Agreement.
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3. In consideration of the waivers and consents granted by the
Lender herein, the Borrower hereby agrees to modify the existing documentation
with the Lender prior to April 30, 2001 to, among other things, adopt a pricing
matrix tied to the financial performance of the Borrower and add financial
covenants applicable to the Borrower and its affiliates (including, but not
limited to, a Funded Debt Ratio, a Leverage Ratio and a Debt Service Coverage
Ratio).
4. This Agreement may be executed in one or more counterparts, each
of which shall for all purposes by deemed to be an original and all of which
shall constitute the same instrument, but only one of which need be produced.
5. The Borrower hereby represents and warrants that all
representations and warranties contained in the Credit Agreement are true and
correct as of the date hereof (except representations and warranties that are
expressly limited to an earlier date); and the Borrower certifies that except
for those matters waived or contained to herein, no Event of Default nor any
event that, upon notice or lapse of time or both, would constitute an Event of
Default, has occurred and is continuing.
6. Nothing contained herein shall be construed as a waiver,
acknowledgement or consent to any breach or Event of Default of the Credit
Agreement and the Credit Documents not specifically mentioned herein, and the
consents granted herein are effective only in the specific instance and for the
purposes which given.
7. This Agreement shall be governed by the laws of the State of
Alabama.
IN WITNESS WHEREOF, each of the Borrower and the Lender has caused this
Agreement to be executed by its duly authorized officer as of the day and year
first above written.
XXXX XXXXXXXX TRANSPORTATION, INC. AMSOUTH BANK
By: [signature illegible] By: [signature illegible]
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Its: CFO Its: Senior Vice President
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