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).
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(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
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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 receipt of any Net Cash Proceeds in
respect of any Disposition (including, without limitation, the
Specified Sale and Leaseback Transaction) on such Business Day the
Company or any of its Subsidiaries fails to deposit 100% of the Net
Cash Proceeds of such Disposition into a deposit account maintained
with the Administrative Agent,
(xi) the date on which the Company
or any of its Subsidiaries fails to maintain on deposit in each
such account referred to in the preceding clause (x)
an amount equal to at least (A) the aggregate amount of
Net Cash Proceeds (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)
deposited therein, minus (B) the aggregate amount of
such Net Cash Proceeds used to make a permanent repayment of the
Term Loans pursuant to the terms and conditions of
Section 2.12(a) of the Credit Agreement, minus
(C) the aggregate amount of such Net Cash Proceeds used to
make a permanent prepayment of the Term Loans pursuant to the
succeeding clause (xii) in accordance with the terms
and conditions of Section 2.12 of the Credit Agreement,
minus (D) the aggregate amount of any such Net Cash
Proceeds used to pay any fees under or in connection with this
Waiver, the Yellow Receivables Facility, the Credit Agreement or
any other Loan Document in an aggregate amount not to exceed
$10,000,000,
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(xii) the date that is three
(3) Business Days following the receipt by the Company or any
Subsidiary Guarantor of any Net Cash Proceeds of any Dispositions
in respect of rolling stock owned by the Company or any Subsidiary
Guarantor which, when combined with the fair market value of all
other rolling stock sold pursuant to Dispositions from
January 15, 2009 through and including February 17, 2009,
exceed $6,000,000 and the excess of such Net Cash Proceeds over
$6,000,000 has not been used to make a permanent prepayment of the
Term Loans in accordance with the terms and conditions of
Section 2.12 of the Credit Agreement; provided that,
until such ex
