EXHIBIT 10.5
WAIVER AND CONSENT AGREEMENT
THIS WAIVER AND CONSENT AGREEMENT ("this Agreement), effective as of June 30,
2001, but executed on November 13, 2001, is entered into by XXXX BROS.
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 dates
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 have the respective meanings attributed thereto in
the Credit Agreement.
2. The Lender consents to and waives the failure of the Borrower to:
(a) DEBT SERVICE COVERAGE RATIO. Not permit its ratio of EBITDA
plus the Net Gain from the sale of rolling stock to Interest Expense and
Principal Maturities measured as of the end of each June 30 and December 31
of each year for the previous four fiscal quarters to be less than 1.25
to 1.0.
3. 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.
4. 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.
5. 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 BROS. TRANSPORTATION, INC. AMSOUTH BANK
By: Xxxxxx X. Xxxxx, Xx. By: X. Xxxxxx
------------------------------------ ----------------------------------
Its: Vice President Finance/ Its: Vice President
Administration
