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EXHIBIT 10.25
AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED
FINANCING AGREEMENT
dated as of May 28, 1993
THIS AMENDMENT dated as of March 25, 1996 is made by and among THE CIT
GROUP/BUSINESS CREDIT, INC., a New York corporation ("CITBC"), NATIONAL BANK OF
CANADA, a Canadian chartered bank ("NBC", and together with CITBC, the
"Lenders"), CITBC, in its capacity as the agent for the Lenders ("Agent"), and
BUILDERS TRANSPORT, INC., a Georgia corporation ("Company").
Preliminary Statement
The Company, the Agent, NBC, and CITBC are parties to that certain
Amended and Restated Financing Agreement, dated as of May 28, 1993, as amended
to date (the "Financing Agreement"). Terms defined in the Financing Agreement
and not otherwise defined herein are used herein as therein defined.
The Company, the Agent and the Lenders have agreed to amend certain
financial covenants of the Financing Agreement and to waive instances of
noncompliance by the Company with such financial covenants upon and subject to
the terms of this Amendment.
NOW, THEREFORE, in consideration of the Financing Agreement, the
advances and other financial accommodations made thereunder, the mutual
promises hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Amendments to Financing Agreement. The Financing Agreement
is hereby amended, subject to the provisions of Section 2 hereof, effective as
of the date hereof, by amending Section 7 Representations, Warranties and
Covenants by amending paragraphs 9, 13 and 14 thereof in their entireties to
read, respectively, as follows:
9. The Company shall maintain at the end of each fiscal
quarter, a Net Worth of not less than:
FISCAL PERIOD AMOUNT
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For the fiscal quarter $37,000,000
ending March 31,
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For the fiscal quarter $37,250,000
ending June 30, 1996
For the fiscal quarter $37,500,000
ending September 30,
1996 and each fiscal
quarter thereafter
13. The Company shall maintain at the end of each fiscal
quarter, an Interest Coverage Ratio of at least:
FISCAL PERIOD RATIO
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For the fiscal quarter 0.75 to 1
ending March 31, 1996
For the fiscal quarter 0.60 to 1
ending June 30, 1996
For the fiscal quarter 0.70 to 1
ending September 30,
1996
For each fiscal quarter 1.00 to 1
ending on or after
December 31, 1996
14. The Company shall maintain at the end of each fiscal
quarter, a Leverage Ratio of not more than:
FISCAL PERIOD RATIO
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For the fiscal quarters 6.25 to 1
ending March 31 1996
and June 30, 1996
For the fiscal quarter 6.15 to 1
ending September 30,
1996
For each fiscal quarter 6.00 to 1
ending on or after
December 31, 1996
Section 2. Waiver. Subject to the provisions of Section 3, the
Lenders hereby waive compliance and the effects of noncompliance by the Company
with the provisions of Section 7, paragraph 9 to the extent that the Company's
Net Worth as of December 31, 1995 was not less than $38,289,000 and Section 7,
paragraph 14 to the extent that the Leverage Ratio as of December 31, 1995 was
not greater than 6.11 to 1.
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Section 3. Effectiveness of Amendment. Sections 1 and 2 of this
Amendment shall become effective as of the date hereof upon receipt by the
Agent of the following, each in form and substance satisfactory to the Agent
and the Lenders:
(a) at least five copies of this Amendment, each duly
executed and delivered by the Company and each Lender;
(b) an Officer's Certificate executed by an authorized
officer of the Company to the effect that after giving effect to this Amendment
(i) all representations and warranties of the Company set forth in the
Financing Agreement and in any other document, instrument or agreement entered
into in connection with the Financing Agreement (together with the Financing
Agreement, the "Loan Documents") are true and correct in all material respects
on and as of the date thereof and (ii) the Company is in compliance with all of
the terms and provisions set forth in the Financing Agreement and the other
Loan Documents;
(c) confirmations duly executed and delivered by the
Guarantors of their Guaranties and the Pledge Agreements in the form attached
to this Amendment; and
(d) such other documents, instruments and certificates as
the Agent or any Lender may reasonably request in connection with the
transactions contemplated by this Amendment.
Section 4. Effect of Amendment. From and after the
effectiveness of this Amendment, all references in the Financing Agreement and
in the Loan Documents to "the Amended and Restated Financing Agreement," "the
Financing Agreement," "hereunder," "hereof" and words of like import referring
to the Financing Agreement, shall mean and be references to the Financing
Agreement as amended by this Amendment. Except as expressly amended hereby,
the Financing Agreement and all terms, conditions and provisions thereof remain
in full force and effect and are hereby ratified and confirmed. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any
Lender or the Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents.
Section 5. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
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(b) Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Georgia, without
giving effect to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[CORPORATE SEAL] BUILDERS TRANSPORT, INC.,
a Georgia corporation, as the
ATTEST: Company
X.X. Xxxxxxx
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[Assistant] Secretary By: Xxxxxx Xxx
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Title: Executive Vice President &
Chief Financial Officer
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THE CIT GROUP/BUSINESS
CREDIT, INC., a New York
corporation, as Agent and as
a Lender
By: Xxxxxx Xxxxxxx
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Title:Vice President
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NATIONAL BANK OF CANADA,
a Canadian chartered bank
By: Xxxxxxx Xxxxxx
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Title: Vice President & Manager
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By: Xxx Xxxx
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Title: Assistant Vice President
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CONSENT, RELEASE AND CONFIRMATION OF GUARANTORS
Each of the undersigned, each a "Guarantor" as defined in the Amended
and Restated Financing Agreement dated May 28, 1993 among Builders Transport,
Inc., as borrower, The CIT Group/Business Credit, Inc., as Agent for the
Lenders (as such term is defined therein) and as a Lender and National Bank of
Canada, as a Lender, hereby acknowledges receipt of the foregoing Amendment and
Waiver to Amended and Restated Financing Agreement and confirms for the benefit
of the Agent and the Lenders, that each of the Guaranty or Non-Recourse
Guaranty, as the case may be, dated January 3, 1992, as amended, executed and
delivered by the undersigned continues in full force and effect as a guaranty
in accordance with its terms and continues to be secured by any collateral
therefor and that each of the undersigned hereby waives and releases any and
all claims it may have against the Agent or any Lender or any of their
respective shareholders, directors, employees or agents arising out of any
event or circumstance existing on or prior to the date hereof and arising under
the Original Financing Agreement (as defined in the aforesaid Amended and
Restated Financing Agreement), the aforesaid Amended and Restated Financing
Agreement, the Guaranty, the Non-Recourse Guaranty or any related document or
in connection with the transactions contemplated thereby.
BUILDERS TRANSPORT OF TEXAS, INC.
By Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chief Financial Officer
CCG, INC.
By Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chief Financial Officer
BUILDERS TRANSPORT, INCORPORATED
By Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chief Financial Officer
