Looking for an agreement? Search from over 1 million agreements now.
Home > Waiver Agreements/Waivers > Agreement Preview

Waiver No. 1 Credit Agreement

This is an actual contract by YRC Worldwide.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Sectors: Transportation
Governing Law: New York, View New York State Laws
Effective Date: January 15, 2009
Related Agreement Types:
Search This Document
Exhibit 10.1

EXECUTION COPY

WAIVER NO. 1

Dated as of January 15, 2009

to CREDIT AGREEMENT

Dated as of August 17, 2007

THIS WAIVER NO. 1 (" Waiver" ) is made as of January 15, 2009 by and among YRC Worldwide Inc. (the " Company" ), the Canadian Borrower and the UK Borrower (together with the Company, the " Borrowers" ), the financial institutions listed on the signature pages hereof and JPMorgan Chase Bank, National Association, as Administrative Agent (the " Administrative Agent" ), under that certain Credit Agreement dated as of August 17, 2007 by and among the Borrowers from time to time party thereto, the Lenders and the Administrative Agent (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement" ). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.

WHEREAS, the Company has requested that the Lenders and the Administrative Agent agree to certain waivers in respect of the Credit Agreement; and

WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to such waivers on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Lenders party hereto and the Administrative Agent have agreed to enter into this Waiver. 1. Waivers .

(a) The Company has informed the Lenders that, as a result of the Company' s failure to comply with the provisions of Section 2.12(e) of the Credit Agreement requiring a mandatory prepayment of the Term Loans in an amount equal to approximately $38,600,000, an Event of Default has occurred under clause (a) of Article VII of the Credit Agreement (such failure, the " Payment Event of Default" ). (b) The Company has requested that the Lenders waive any Default or Event of Default which has arisen or may arise under clause (d) of Article VII of the Credit Agreement as a result of the Borrower' s failure to comply with the financial covenants contained in Sections 6.07(a) and 6.07(b) of the Credit Agreement with respect to the fiscal year of the Company ending on or about December 31, 2008 (such failure, the " Financial Covenant Defaults" ).

(c)The Company has requested that the Lenders waive any Default or Event of Default which has arisen or may arise under clause (c) of Article VII of the Credit Agreement as a result of representations or warranties made or deemed made by or on behalf of any Borrower or any Subsidiary in connection with any Loan Document or in any report, certificate or other document furnished pursuant to or in connection with any Loan Document proving to have been incorrect in any material respect when made or deemed

made solely as a result of the Payment Event of Default, the Financial Covenant Defaults and/or the Cross Default (as defined below) or related to the Representation Waivers (as defined below) (such failure, the " Representation Default" ).

(d) The Company has requested that the Lenders waive any Default or Event of Default arising under clause (g) of Article VII of the Credit Agreement as a result of the existence of a Servicer Default (as defined in the Yellow Receivables Facility) arising solely as a result of the Payment Event of Default, the Financial Covenant Defaults and/or the Representation Default (such cross default, the " Cross Default" and together with the Payment Event of Default, the Financial Covenant Defaults and the Representation Default, the " Specified Defaults" ).

(e) The Company has requested that the Lenders waive the provisions of Section 3.04(b) of the Credit Agreement (other than any representation or warranty of the provisions of Section 3.04(b) of the Credit Agreement made after the date of this Waiver solely for the period commencing on September 30, 2008) in respect of any representations or warranties made or deemed made by or on behalf of any Borrower or any Subsidiary prior to, on or after the date hereof in connection with any Loan Document or in any report, certificate or other document furnished pursuant to or in connection with any Loan Document (such limited waiver, the " 3.04(b) Representation Waiver" ).

(f) The Company has requested that the Lenders waive the provisions of Section 3.07 of the Credit Agreement solely in connection with (i) that certain Master Lease Agreement, dated as of January 17, 2008, by and among RBS Asset Finance, any other lessors or creditors thereunder from time to time party thereto and certain of the Loan Parties, including all exhibits, schedules, annexes and assignments in respect thereof (as amended, supplemented or otherwise modified from time to time, collectively, the " RBS Lease" ) and (ii) that certain Master Equipment Lease Agreement, dated as of August 6, 2001, by and among Banc of America Leasing & Capital, LLC, any other lessors or creditors thereunder from time to time party thereto and certain of the Loan Parties, including all exhibits, schedules, annexes and assignments in respect thereof (as amended, supplemented or otherwise modified from time to time, collectively, the " BofA Lease" ), in respect of any representations or warranties made or deemed made by or on behalf of any Borrower or any Subsidiary prior to, on or after the date hereof in connection with any Loan Document or in any report, certificate or other document furnished pursuant to or in connection with any Loan Document (such limited waiver, the " 3.07 Representation Waiver" ; and together with the 3.04(b) Representation Waiver, the " Representation Waivers" ).

(g) The Company has requested that the Lenders waive the provisions of Section 2.12(e) of the Credit Agreement solely in respect of the Net Cash Proceeds received by the Company or any of its Domestic Subsidiaries from the consummation of the Specified Sale and Leaseback Transaction; provided that such waiver shall only apply to the Net Cash Proceeds of the Specified Sale and Leaseback Transaction and shall in no event apply to any such Net Cash Proceeds in excess of $150,000,000 (such waiver, the " Specified Prepayment Waiver" ).

(h) As used in this Waiver, the " Specified Sale and Leaseback Transaction" means the sale and simultaneous lease back of approximately thirty-two operating warehouse facilities owned by the Company and located throughout the United States pursuant to the terms of that certain Real Estate Sales Contract dated December 19, 2008 by NATMI Truck Terminals, LLC and the Company, as in effect on the date hereof and without giving effect to any amendment, waiver or other modification thereto which is in any manner adverse to any Lender (including, without limitation, in respect of the purchase price thereunder, the number of parcels of real estate subject thereto and the interest rate in respect of the obligations thereunder).


2

(i) As used in this Waiver, a " Disposition" means any " Asset Sale" (as defined in the Credit Agreement) and any sales or other dispositions of obsolete, uneconomic or worn-out assets (including trucks, tractors, tires, trailers or terminals and related equipment and real property and related fixtures). To the extent used in this Waiver, the term " Net Cash Proceeds" shall have the meaning ascribed thereto in the Credit Agreement but shall apply equally to " Dispositions" (as defined herein). (j) As used in this Waiver, the " Waiver Termination Date" means the earliest of: (i) the date on which any Default or Event of Default (other than the Specified Defaults and the Representation Waivers) occurs under the Credit Agreement,

(ii) the date on which the Company or any of its Subsidiaries shall, directly or indirectly, make (or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, any Indebtedness for borrowed money other than Indebtedness outstanding under the Credit Agreement, the Yellow Receivables Facility, any Indebtedness owing from the Company or any Subsidiary to any Loan Party or any Indebtedness owing from any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party,

(iii) the date on which the Company or any of its Subsidiaries incurs after the date hereof any Indebtedness other than (A) Indebtedness under the Credit Agreement, (B) Indebtedness under the Yellow Receivables Facility, (C) Indebtedness under the Specified Sale and Leaseback Transaction, (D) Indebtedness of any Domestic Subsidiary owed to the Company or another Domestic Subsidiary, (E) Indebtedness of any Foreign Subsidiary owed to the Company or any other Loan Party in the ordinary course of business and consistent with past practices in an aggregate principal amount for all such Indebtedness under this clause (E) not to exceed $10,000,000 (provided that to the extent such Indebtedness shall be evidenced by a note or other instrument, such note or other instrument is delivered to the Administrative Agent in accordance with the terms and conditions of the Collateral Documents), (F) Indebtedness of any Subsidiary that is not a Loan Party owed to any other Subsidiary that is not a Loan Party or (G) other Indebtedness in an aggregate principal amount for all such Indebtedness under this clause (G) not to exceed $30,000,000, (iv) the date on which the Company or any of its Subsidiaries makes any Restricted Payment other than Restricted Payments permitted by clauses (a) , (b) and (c) of Section 6.10 of the Credit Agreement,

(v) the date on which the Company or any of its Subsidiaries incurs after the date hereof Liens permitted by clause (m) of Section 6.02 of the Credit Agreement securing Indebtedness (other than Indebtedness under the Specified Sale and Leaseback Transaction) in an aggregate amount in excess of $30,000,000,

(vi) the date on which the Company or any of its Subsidiaries makes any Acquisition,

(vii) the date on which the Company or any of its Subsidiaries shall consummate any Disposition (other than the Specified Sale and Leaseback Transaction or any Disposition of rolling stock owned by the Company or any Subsidiary Guarantor) in respect of any asset or assets, (A) the aggregate fair market value of which, when combined with the fair market value of all other assets sold pursuant to Dispositions (other than the Specified Sale and Leaseback Transaction or any


3

Disposition of rolling stock owned by the Company or any Subsidiary Guarantor) from January 15, 2009 through and including February 17, 2009, shall exceed $30,000,000 and (B) with respect to which, the Company has not provided to the Administrative Agent, prior to such consummation, a certificate of a Financial Officer certifying that (1) the fair market value of all property disposed of in such Disposition, when aggregated with any other Dispositions consummated during the period beginning January 15, 2009 through and including the date of such Disposition, shall not exceed $30,000,000 and (2) no Default or Event of Default has occurred and is continuing (after giving effect to this Waiver) prior to making such Disposition or would arise after giving effect (including pro forma effect reasonably acceptable to the Administrative Agent) thereto, such certificate to include any calculations in respect thereof reasonably requested by the Administrative Agent; provided that such a certificate shall only be required in connection with (a) any sale of an asset (or series of related sales of assets) the aggregate fair market value of which exceeds $10,000 and (b) any sale of assets the aggregate fair market value of which, when combined with the fair market value of all other assets sold pursuant to Dispositions (other than the Specified Sale and Leaseback Transaction or any Disposition of rolling stock owned by the Company or any Subsidiary Guarantor) from January 15, 2009 through and including February 17, 2009, shall exceed $1,000,000, (viii) the date on which the Company or any of its Domestic Subsidiaries shall reinvest any Net Cash Proceeds of any Dispositions (other than (A) the Net Cash Proceeds of the Specified Sale and Leaseback Transaction in an amount not to exceed $150,000,000 and (B) the Net Cash Proceeds of any Dispositions in respect of rolling stock owned by the Company or any Subsidiary Guarantor in an aggregate amount not to exceed $6,000,000) to acquire or repair assets to be used in the business of the Company and its Domestic Subsidiaries or to acquire any other asset, (ix) the date on which the Company or any of its Domestic Subsidiaries shall consummate any Disposition for less than 100% cash consideration,

(x) the Business Day immediately following the date of the rec
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  34.204.169.76