EXHIBIT 10.15.3
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Agreement"), dated as
of August 6, 2003, by and between TRAILER BRIDGE, INC. ("Borrower") and GENERAL
ELECTRIC CAPITAL CORPORATION ("Lender").
W I T N E S S E T H:
-------------------
WHEREAS, Lender and Borrower have entered into certain financing
arrangements pursuant to the Loan and Security Agreement, dated as of December
27, 2000, by and between General Electric Capital Corporation, as Lender, and
Borrower (and as amended hereby, and as the same may have heretofore been or may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement"); and
WHEREAS, Borrower has requested that Lender agree to certain amendments
to the Loan Agreement; and
WHEREAS, Lender is willing to agree to the foregoing, subject to the
terms and conditions specified herein; and
WHEREAS, by this Agreement, Lender and Borrower desire and intend to
evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto agree,
covenant and warrant as follows:
SECTION 1. DEFINITIONS
1.1 Interpretation. All capitalized terms used herein (including the
recitals hereto) shall have the respective meanings assigned thereto in the Loan
Agreement unless otherwise defined herein.
SECTION 2. ACKNOWLEDGMENT
2.1 Acknowledgment of Obligations. Borrower hereby acknowledges,
confirms and agrees that as of the close of business on July 30, 2003, Borrower
is indebted to Lender in respect of the Revolving Credit Loans in the principal
amount of $5,480,859.73, and the Term Loan in the amount of $7,714,285.74. All
such Loans, together with interest accrued and accruing thereon, and fees,
costs, expenses and other charges now or hereafter payable by Borrower to
Lender, are unconditionally owing by Borrower to Lender, without offset, defense
or counterclaim of any kind, nature or description whatsoever.
2.2 Acknowledgment of Security Interests. Borrower hereby acknowledges,
confirms and agrees that Lender has and shall continue to have valid,
enforceable and perfected liens upon
and security interests in the Collateral heretofore granted to Lender pursuant
to the Loan Documents or otherwise granted to or held by Lender.
2.3 Binding Effect of Documents. Borrower hereby acknowledges, confirms
and agrees that: (a) each of the Loan Documents to which it is a party has been
duly executed and delivered to Lender by Borrower, and each is in full force and
effect as of the date hereof, (b) the agreements and obligations of Borrower
contained in such documents and in this Agreement constitute the legal, valid
and binding Obligations of Borrower, enforceable against it in accordance with
their respective terms, and Borrower has no valid defense to the enforcement of
such Obligations, and (c) Lender is and shall be entitled to the rights,
remedies and benefits provided for in the Loan Documents and applicable law.
SECTION 3. AMENDMENTS
3.1 Financial Covenants. Schedule G-Financial Covenants to the Loan
Agreement is hereby amended and restated in its entirety and replaced by a new
Schedule G-Financial Covenants attached hereto as Exhibit 1.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
Borrower hereby represents, warrants and covenants with and to Lender
as follows:
4.1 Representations in Loan Documents. Each of the representations and
warranties made by or on behalf of Borrower to Lender in any of the Loan
Documents was true and correct when made and in all material respects is true
and correct on and as of the date of this Agreement with the same full force and
effect as if each of such representations and warranties had been made by
Borrower on the date hereof and in this Agreement.
4.2 Binding Effect of Documents. This Agreement and the other Loan
Documents have been duly executed and delivered to Lender by Borrower and are in
full force and effect, as modified hereby and the agreements and obligations of
Borrower contained herein constitute legal, valid and binding obligations of the
Borrower enforceable against Borrower in accordance with their terms.
4.3 Compliance. In addition to the Events of Default defined in the
Loan Documents, failure of Borrower to comply with the covenants, conditions and
agreements contained herein shall immediately, without further notice or demand
of any kind, constitute an Event of Default under the Loan Documents.
4.4 No Conflict, Etc. The execution, delivery and performance of this
Agreement by Borrower will not violate any requirement of law or contractual
obligation of Borrower and will not result in, or require, the creation or
imposition of any Lien on any of Borrower's properties or revenues, except in
favor of Lender.
2
SECTION 5. CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS OF THIS AGREEMENT
This Agreement shall be effective as of the date first above written,
and such effectiveness shall be subject to the receipt by Lender of each of the
following, in form and substance satisfactory to Lender:
(a) an original of this Agreement, duly authorized, executed
and delivered by Borrower;
(b) payment of the Amendment Fee set forth in Section 6.2
herein;
(c) payment of the fees and disbursements of counsel to Lender
incurred in connection with the preparation, negotiation, execution and delivery
of this Agreement and the transactions hereunder; and
(d) any and all such further instruments and documents as
Lender may require to obtain the full benefits of this Agreement and to protect,
preserve and maintain Lender' rights in the Collateral.
SECTION 6. PROVISIONS OF GENERAL APPLICATION
6.1 Effect of this Agreement. Except as modified pursuant hereto, no
other changes or modifications to the Loan Documents are intended or implied and
in all other respects the Loan Documents are hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date hereof. To
the extent of conflict between the terms of this Agreement and the other Loan
Documents, the terms of this Agreement shall control. The Loan Agreement and
this Agreement shall be read and construed as one agreement.
6.2 Amendment Fee. Borrower shall pay to Lender an Amendment Fee of
$25,000, which Amendment Fee shall be fully earned as of the date hereof and
shall be payable in full on September 30, 2003. Such fee may be charged to the
Revolving Credit Loan at the discretion of Lender.
6.3 Costs and Expenses. Borrower absolutely and unconditionally agree
to pay to the Lender, on demand by the Lender at any time and as often as the
occasion therefor may require, whether or not all or any of the transactions
contemplated by this Agreement are consummated: all reasonable fees and
disbursements of any counsel to Lender in connection with the preparation,
negotiation, execution, or delivery of this Agreement and any agreements
delivered in connection with the transactions contemplated hereby and expenses
which shall at any time be incurred or sustained by the Lender or any
participant of Lender or any of their respective directors, officers, employees
or agents as a consequence of or in any way in connection with the preparation,
negotiation, execution, or delivery of this Agreement and any agreements
prepared, negotiated, executed or delivered in connection with the transactions
contemplated hereby.
3
6.4 Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
6.5 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
6.6 Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by Lender or any closing shall
affect the representations and warranties or the right of Lender to rely upon
them.
6.7 Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.8 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without regard to
conflicts of laws principles thereof.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Agreement, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
day and year first above written.
TRAILER BRIDGE, INC.
By: /s/ Xxxx X. XxXxxx
------------------------------------
Title: Chairman and Chief Executive
Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Title: Duly Authorized Signatory
4
Exhibit 1
Schedule G
FINANCIAL COVENANTS
As used in this Agreement (including this Schedule G covenant), the following
terms shall have the following meanings:
"EBITDA" shall mean, for any period, the Net Income (Loss) of Borrower for such
period, plus interest expense, income tax expense, amortization expense,
depreciation expense, and minus gains on sale of fixed assets, in each case, of
Borrower for such period determined in accordance with GAAP to the extent
included in the determination of such Net Income (Loss).
"Funded Debt" shall mean, for any Person, all of such Person's Indebtedness
which by the terms of the agreement governing or instrument evidencing such
Indebtedness matures more than one year from, or is directly or indirectly
renewable or extendible at the option of such Person under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of more than one year from, the date of creation thereof, including
current maturities of long-term debt, revolving credit, and short-term debt
extendible beyond one year at the option of such Person.
"Net Income (Loss)" shall mean with respect to any Person and for any period,
the aggregate net income (or loss) after taxes of such Person for such period,
determined in accordance with GAAP.
1. Minimum EBITDA. For each Fiscal Quarter commencing with the Fiscal Quarter
ending June 30, 2003, Borrower shall have an EBITDA as of the last day of each
such Fiscal Quarter, of not less than the amount set forth below:
EBITDA
For the Fiscal Quarter ending shall not be less than
----------------------------- -----------------------
June 30, 2003 $765,000
September 30, 2003 $1,000,000
December 31, 2003 $1,350,000
2. Maximum Cash Burn. For each Fiscal Quarter commencing with the Fiscal Quarter
ending June 30, 2003, Borrower shall have an EBITDA less regularly scheduled
payments of principal paid or that were required to be paid on Funded Debt
(excluding the Revolving Credit Loan) during such period less Total Interest
Expense less unfinanced Capital Expenditures as of the last day of each such
Fiscal Quarter, of not more than the amount set forth below:
1
Cash Burn
For the Fiscal Quarter ending shall not be more than
----------------------------- -----------------------
June 30, 2003 $450,000
September 30, 2003 $700,000
December 31,2003 $0
3. Minimum Tangible Net Worth. Borrower shall have, at the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending June 30, 2003, a Tangible Net
Worth as of the last day of each Fiscal Quarter of not less than:
Tangible Net Worth
For the Fiscal Quarter ending shall not be less than
----------------------------- -----------------------
June 30, 2003 $6,200,000
September 30, 2003 $6,200,000
December 31, 2003 $6,200,000
For purpose of this covenant in Schedule G the following terms shall have the
meanings set forth below:
"Tangible Net Worth" shall mean, with respect to any Person, at any date,
Shareholder Equity less Intangible Assets, all as defined by, and determined in
accordance with, GAAP.
4. Leverage Ratio. Borrower shall have, at the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending June 30, 2003, a Leverage Ratio as of
the last day of each Fiscal Quarter of not more than:
Leverage Ratio
For the Fiscal Quarter ending shall not be more than
----------------------------- -----------------------
June 30, 2003 1.00 : 1.00
September 30, 2003 1.00 : 1.00
December 31, 2003 1.00 : 1.00
For purpose of this covenant in Schedule G the following terms shall have the
meanings set forth below:
"Leverage Ratio" shall mean, with respect to any Person, at any date, the ratio
of Total Liabilities to Tangible Assets, all as defined by, and determined in
accordance with, GAAP.
5. Capital Expenditures. Borrower shall not make aggregate unfinanced (including
trade-ins) Capital Expenditures in any Fiscal Year in excess of $250,000.
2
