EXHIBIT 10.3
November 15, 2004
Diamond Triumph Auto Glass, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: WAIVER AND AMENDMENT NUMBER NINE TO FINANCING AGREEMENT (THIS "WAIVER AND
AMENDMENT")
Gentlemen:
Reference is made to the Financing Agreement dated March 27, 2000 between The
CIT Group/Business Credit, Inc., as lender thereunder ("CITBC") and Diamond
Triumph Auto Glass, Inc., as borrower thereunder (the "Company"), as the same
has been and may be amended from time to time (the "Financing Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Financing Agreement.
You have advised us that you are in violation of the financial covenant set
forth in Section 7, Paragraph 9(a) of the Financing Agreement for the fiscal
period ended September 30, 2004.
This Waiver and Amendment confirms our agreement that, solely with respect to
said fiscal period, the foregoing violations and/or breaches of the Financing
Agreement shall not be deemed to be Defaults and/or Events of Default under the
Financing Agreement. On and after the date hereof, you shall be required to
remain in compliance with all of the terms and provisions of the Financing
Agreement (including, without limitation, the financial covenants referred to
above) as amended hereby.
In addition, effective as of September 30, 2004, the Financing Agreement shall
be amended as follows:
1. Section 7, Paragraph 9(a) of the Financing Agreement shall be, and
hereby is, amended in its entirety to read as follows:
"9. (a) The Company shall maintain minimum EBITDA, calculated monthly, for
each rolling 12-month period in the following amounts:
Period Ending Amount
------------- ------
October 31, 2004 $ 8,200,000.00
November 30, 2004 $ 8,900,000.00
December 31, 2004 $ 8,500,000.00
January 31, 2005 and the last
day of each month thereafter $ 10,500,000.00
Diamond Triumph Auto Glass, Inc.
Page 2
2. Section 10, Paragraph 1(i) of the Financing Agreement shall be, and
hereby is amended in its entirety to read as follows:
"(i) without the prior written consent of CITBC, the Company (w)
amends or modifies the Senior Unsecured Debt or any Subordinated Debt, or
(x) makes any payment on account of any Subordinated Debt except as
permitted in the applicable Subordination Agreement, or (y) makes any
payment on account of any Senior Unsecured Debt except for regularly
scheduled payments (but no prepayments) as contemplated under the
Indenture evidencing the Senior Unsecured Debt as in effect as of the date
hereof, or (z) redeems or repurchases any Senior Unsecured Debt (whether
optional or mandatory) at any time that all of the following conditions
have not been met: (i) immediately prior to and after giving effect to any
such redemption or repurchase, Availability shall be at least $4,000,000,
(ii) no Default or Event of Default shall have occurred and be continuing
immediately prior to and after giving effect to any such redemption or
repurchase and (iii) the Company's EBITDA for the twelve month period
immediately prior to any such redemption or repurchase shall be at least
$10,500,000; or"
Except to the extent set forth herein, no other waiver of, or change in any of
the terms, provisions or conditions of the Financing Agreement is intended or
implied. This Waiver and Amendment shall not constitute a waiver of any other
existing Defaults or Events of Default under the Financing Agreement (whether or
not we have knowledge thereof), and shall not constitute a waiver of any future
Defaults or Events of Default whatsoever.
In consideration of the foregoing Waiver and Amendment, the Company shall pay to
CITBC an amendment fee of $5,000.00 (the "Amendment Fee"). The Amendment Fee
shall be fully earned by CITBC, and shall be charged to the Company's loan
account upon the Company's execution of this Waiver and Amendment.
THIS LETTER, TOGETHER WITH THE FINANCING AGREEMENT, REPRESENTS THE FINAL
AGREEMENT BETWEEN YOU AND US WITH RESPECT TO THE RESPECTIVE SUBJECT MATTER
HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN OR ORAL AGREEMENTS BETWEEN YOU AND US.
Diamond Triumph Auto Glass, Inc.
Page 3
If the foregoing is in accordance with your understanding, please so indicate by
signing and returning the enclosed copy of this letter. This Waiver and
Amendment may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
This Waiver and Amendment of the Financing Agreement will expire unless the
Company executes said Waiver and Amendment and returns it to CITBC (which may be
by facsimile transmission with the original received in ordinary course
thereafter) prior to at 5:00 p.m. Pacific Daylight time on November 15, 2004.
Very truly yours,
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Assistant Vice President
Read and Agreed:
DIAMOND TRIUMPH AUTO GLASS, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------
Title: VP of Finance
