[Execution Copy]
AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED
FINANCING AGREEMENT
dated as of May 28, 1993
THIS AMENDMENT dated as of June 10, 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 has requested increases in the maximum principal amounts of
certain of the credit facilities available pursuant to the Financing
Agreement, an extension of the term of the Financing Agreement and certain
other modifications of the terms of the Financing Agreement, and the Agent and
the Lenders have agreed, upon and subject to all of the terms, conditions and
provisions of this Amendment, to such requests.
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
(a) amending Section 1 Definitions by
(i) amending the definition "Chemical Bank Rate" by inserting
after the phrase "announced by Chemical Bank" appearing therein, the
parenthetical phrase "(or any successor by merger to Chemical Bank)";
(ii) amending the definition "Collateral Management Fee" by
inserting after the phrase "payable on each Anniversary Date" appearing
therein, the phrase "or, as to Anniversary Dates occurring on and after
December 31, 1996, $50,000.00 per year payable on each such Anniversary
Date,";
(iii) amending the definition "Early Termination Fee" in its
entirety to read as follows:
Early Termination Fee shall mean the fee the Agent is entitled to
charge the Company in the event the Company terminates the Line of
Credit or this Amended and Restated Financing Agreement on a date
prior to the Anniversary Date that occurs on December 31, 1998,
which fee shall be in the amount of (a) $250,000 if such
termination occurs on or prior to December 31, 1997 and (b)
$150,000 if such termination occurs after December 31, 1997 and on
or prior to the thirtieth (30th) day prior to December 31, 1998,
and shall be payable upon termination. The Company shall give the
Agent and the Lenders ninety (90) days notice of termination prior
to any such termination date.
(iv) amending the definition "Eligible Accounts Receivable" by
deleting from clause (iii) of the proviso therein, the figure
"$2,500,000" and substituting therefor the figure "$3,500,000";
(v) amending the definition "Revolving Line of Credit" by
deleting therefrom the figure "$15,000,000.00" appearing therein and
substituting therefor the figure "$17,500,000.00;
(vi) amending the definition "Term Loan II" by deleting therefrom
the figure "$10,000,000.00" and substituting therefor the figure
"$12,500,000.00";
(b) amending Section 4 Term Loans by amending paragraph 5 thereof
by deleting therefrom the figure "$10,000,000.00" both times it appears in
said paragraph, and substituting therefor the figure "$12,500,000.00";
(c) with respect to Section 5, subparagraph 1(a), the Agent
acknowledges that the Lenders have not, as of the date of this Amendment,
elected to require any reduction in the aggregate maximum amount of
outstanding standby Letters of Credit and that pursuant to the provisions of
Section 1(b), the allowable maximum aggregate amount of outstanding standby
Letters of Credit will be increased from $10,000,000 to $12,500,000 (but
without any allowance for Additional Letters of Credit) and the necessary
conforming change to Section 5 shall be deemed to be made by this reference;
(d) amending Section 8 Interest, Fees and Expenses by inserting
in paragraphs 1 and 2 thereof, in each case immediately before the period
following the phrase "so as to remain one percent (1%) above the Chemical Bank
Rate" appearing in each thereof, the following proviso:
, provided that if EBIT for the fiscal year of the Company ending
December 31, 1996 is equal to or greater than $17,250,000.00 and
the Interest Coverage Ratio for the fiscal year of the Company
ending December 31, 1996 is at least 1.0 to 1, in each case based
upon the audited Consolidated Balance Sheet and related
consolidated statements of income, cash flow and shareholders'
equity delivered by the Company to the Agent and the Lenders in
compliance with the provisions of Section 7, paragraph 8 hereof,
such margin shall, effective the first day of the month following
the month in which such financial statements are delivered (but
not earlier than April 1, 1997), be reduced from one percent (1%)
to three-quarters of one percent (3/4%)
(e) amending Section 11 Termination in its entirety to read as
follows:
SECTION 11. Termination
Except as otherwise permitted herein (including as permitted
in the definition of "Early Termination Fee" in Section 1 of this
Amended and Restated Financing Agreement), the Company may
terminate this Amended and Restated Financing Agreement and the
Line of Credit at any time after December 31, 1998 upon ninety
(90) days prior written notice. Any Lender may terminate this
Amended and Restated Financing Agreement and the Line of Credit on
December 31, 1999 or any subsequent Anniversary Date upon sixty
(60) days prior written notice, provided that, notwithstanding the
foregoing, the Required Lenders may terminate the Amended and
Restated Financing Agreement immediately upon the occurrence of an
Event of Default, provided, however, that if the Event of Default
is an event listed in paragraph 1(c) of Section 10 of this Amended
and Restated Financing Agreement, the Agent and the Lenders may
regard the Amended and Restated Financing Agreement as terminated
and notice to that effect is not required. The Company may
terminate this Amended and Restated Financing Agreement and the
Line of Credit at any time prior to December 31, 1998 upon sixty
(60) days' prior written notice to the Agent and the Lenders,
provided that the Company pays to the Agent, for the ratable
benefit of the Lenders, immediately upon demand any applicable
Early Termination Fee. All Obligations shall become due and
payable as of any termination hereunder or under Section 10 hereof
and, pending a final accounting, the Agent may withhold any
balances in the Company's account (unless supplied with an
indemnity satisfactory to the Agent) to cover all of the Company's
Obligations, whether absolute or contingent. All of the Agent's
and the Lenders' rights, liens and security interests shall
continue after any notice of termination until all Obligations
have been paid and satisfied in full.
(f) the Financing Agreement is further amended as may be
necessary conform the provisions thereof not expressly amended hereby to the
amendments expressly effected by the foregoing paragraphs (a), (b), (c), (d)
and (e).
Section 2. Effectiveness of Amendment. Section 1 of this Amendment
shall become effective as of the date hereof upon receipt by the Agent of an
amendment fee in the amount of $15,000, for the ratable account of the
Lenders, and 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) replacement Promissory Notes, dated the effective date of
this Amendment and duly executed and delivered by the Company, payable to the
order of each Lender, evidencing such Lender's pro rata share of the increases
in Term Loan II and the Revolving Line of Credit and the extension of the
final maturity date effected by this Amendment, in the forms attached as Annex
1 and Annex 2, respectively, to this Amendment (the "1996 Term Loan II Notes"
and the "1996 Revolving Credit Notes," respectively);
(c) a certificate of the Secretary or an Assistant Secretary of
the Company as to the Company's articles or certificate of incorporation and
bylaws as in effect on the effective date of this Amendment (and having copies
thereof attached thereto or certifying that there has been no amendment
thereto since the last date on which such constituent documents were delivered
to the Agent and the Lenders pursuant to the Financing Agreement), as to the
resolutions of the Company's Board of Directors (and shareholder approvals, if
necessary) adopted in connection with the Company's execution and delivery of
this Amendment and as to the incumbency of officers of the Company authorized
to sign this Amendment, the 1996 Term Loan II Notes, the 1996 Revolving Credit
Notes and the other instruments, certificates and documents contemplated to be
delivered by the Company in connection with the effectiveness of this
Amendment;
(d) an Officer's Certificate executed by an authorized officer
of the Company to the effect that, both before and 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;
(e) confirmations duly executed and delivered by the Guarantors
of their Guaranties and the Pledge Agreements in the form attached to this
Amendment;
(f) a legal opinion letter of Nelson, Mullins, Riley &
Scarborough in such form and as to such matters relevant to the effectiveness
of this Amendment as the Agent may reasonably request; and
(g) 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 3. Confirmation of Consent. The Lenders hereby confirm that
the Borrower's pre-purchase of its 8% Subordinated Debentures in the face
amount of $2,157,000 at a discount of 92.25% (or cash outlay of $1,989,832.50,
plus interest accrued on such debentures), in anticipation of its obligation
to make a sinking fund payment in June 1996, was consented to by the Lenders
at the time of the pre-purchase, that such pre-purchase shall not be deemed to
be a breach of paragraph 1(h) of Section 10 of the Financing Agreement, and
the Lenders hereby confirm their agreement to waive any such Default or Event
of Default.
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.
(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.
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
/s/ J. Ray Hardy
- ---------------------------------
[Assistant] Secretary By: /s/ T. M. Guthrie
-------------------------------------
Title: Treasurer
THE CIT GROUP/BUSINESS
CREDIT, INC., a New York
corporation, as Agent and as
a Lender
By: /s/ Robert Bernier
-------------------------------------
Title: Vice President
NATIONAL BANK OF CANADA,
a Canadian chartered bank
By: /s/ Charles Collie
-------------------------------------
Title: VP & Mgr.
By: /s/ Dan Shaw
-------------------------------------
Title: Asst. Vice President
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.
Dated: June 10, 1996
BUILDERS TRANSPORT OF TEXAS, INC.
By: /s/ T. M. Guthrie
-------------------------------------
Name: T. M. Guthrie
Title: Treasurer
CCG, INC.
By: /s/ T. M. Guthrie
-------------------------------------
Name: T. M. Guthrie
Title: Treasurer
BUILDERS TRANSPORT, INCORPORATED
By: /s/ T. M. Guthrie
-------------------------------------
Name: T. M. Guthrie
Title: Treasurer