EXHIBIT 10.2
WAIVER AND CONSENT AGREEMENT
THIS WAIVER AND CONSENT AGREEMENT ("this Agreement"), effective as of
December 31, 2003, and executed on January 23, 2004, 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 the 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,
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 are 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/ [SIG] By: /s/ [SIG]
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Its: CFO Its: Senior Vice President
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