EXHIBIT 10.5
WAIVER AND CONSENT AGREEMENT
THIS WAIVER AND CONSENT AGREEMENT ("this Agreement"), effective as of
December 31, 2002, and executed on February 3, 2003, 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 May 1, 2001, 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) Not make Capital Expenditures (exclusive of trucks
and trailers) during any fiscal year in an amount greater than $500,000.
3. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument, but only one of which
need be produced.
4. 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 consented 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.
5. Nothing contained herein shall be construed as a
waiver, acknowledgment 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.
6. 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: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Its: CFO Its: Vice President
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