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EXHIBIT 10.26
AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED
FINANCING AGREEMENT
DATED AS OF MAY 28, 1993
THIS AMENDMENT AND WAIVER dated as of January 10, 1997 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 3 hereof, effective
as of the date hereof, by
(a) amending Section 1 Definitions by amending the definition
"Revolving Line of Credit" by deleting therefrom the figure
"$17,500,000.00" appearing therein and substituting therefor the figure
"$22,000,000.00"; and
(b) 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 paragraph (a).
Section 2. Waiver. The Lenders and the Agent hereby waive, subject to
the provisions of Section 3, compliance and the effects of non-compliance
by the Company with the provisions of Section 4 of the Financing Agreement
and provisions of the Promissory Notes evidencing Term Loan I [and/or Term
Loan II] that require repayment of principal thereof on December 31, 1996
or March 31, 1997 and agree that the amount of any principal installments
that would otherwise have been payable on the Term Loans will be deferred
to the final maturity date of December 31, 1997.
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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 an amendment fee in the amount of $10,000, 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
increase in the Revolving Line of Credit effected by this Amendment, in
the form attached as Annex 1 to this Amendment (the "1997 Revolving
Credit Notes");
(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 1997 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 in the form attached to this Amendment;
(f) a legal opinion letter of Haskell Slaughter Young & Johnston,
counsel for the Company, 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 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
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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.
BUILDERS TRANSPORT, INC.,
a Georgia corporation, as the
Company
By: /s/ T.M. Guthrie
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Title: Vice President,
Administration and
Treasurer
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[CORPORATE SEAL]
ATTEST:
/s/ J. Ray Hardy
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[Assistant] Secretary
THE CIT GROUP/BUSINESS CREDIT, INC.,
a New York corporation, as Agent and
as a Lender
By: /s/ R. Bernier
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Title: Vice President
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NATIONAL BANK OF CANADA,
a Canadian chartered bank
By: /s/ C. Collie
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Title: Vice President and Manager
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By: /s/ Dan Shaw
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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.
DATED: January 10, 1997
BUILDERS TRANSPORT OF TEXAS, INC.
By /s/ T.M. Guthrie
------------------------------------
Name: T.M. Guthrie
Title: Vice President,
Administration and Treasurer
CCG CORP.
By /s/ T.M. Guthrie
------------------------------------
Name: T.M. Guthrie
Title: Vice President,
Administration and Treasurer
BUILDERS TRANSPORT, INCORPORATED
By /s/ T.M. Guthrie
------------------------------------
Name: T.M. Guthrie
Title: Vice President,
Administration and Treasurer
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ANNEX 1
FORM OF
SUPPLEMENTAL REVOLVING CREDIT NOTE
$ January , 1997
FOR VALUE RECEIVED, the undersigned, BUILDERS TRANSPORT, INC., a Georgia
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of [THE CIT GROUP/BUSINESS CREDIT, INC./NATIONAL BANK OF
CANADA] [("CITBC" or the "Agent")/("Lender")), with offices at [900 Ashwood
Parkway, Atlanta, Georgia 30338, at its office/125 West 55th Street, New York,
New York 10019, at the Agent's office (referred to below)], in lawful money of
the United States of America and in immediately available funds, the principal
amount of ----------------------- MILLION ----------------------- HUNDRED
- ----------- THOUSAND AND NO/100s DOLLARS ($ ) or such other
principal amount advanced pursuant to the Amended and Restated Financing
Agreement (as hereinafter defined) under the Revolving Credit Line, such
Revolving Loan advances shall be repaid on a daily basis as a result of the
application of the proceeds of collections of the Accounts and the making of
additional Revolving Loans as described in Section 3 of the Amended and Restated
Financing Agreement. The Revolving Loans may be borrowed, repaid and reborrowed
by the Company, provided that no single advance or overadvance may be
outstanding more than thirty-five months from the date of such advance. A final
balloon payment in the amount equal to the outstanding aggregate balance of
principal and interest remaining unpaid, if any, under this Note as shown on the
books and records of the Agent shall be due and payable on the earlier of one
business day prior to December 31, 1999 or the termination of the Amended and
Restated Financing Agreement.
The Company further absolutely and unconditionally promises to pay to the order
of (CITBC/Lender) at the Agent's office [at 900 Ashwood Parkway, Atlanta,
Georgia 30338], interest, in like money, on the unpaid principal amount owing
hereunder from time to time from the date hereof on the dates and at the rates
specified in Section 8, paragraph 1 of the Amended and Restated Financing
Agreement.
If any payment on this Note becomes due and payable on a day other than a
business day, the maturity thereof shall be extended to the next succeeding
business day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is one of the Promissory Notes referred to in the Amended and Restated
Financing Agreement, dated as of May 28, 1993, as the same may be amended and
restated and in effect from time to time, pursuant to which this Promissory Note
is delivered, among the Company, the Lenders and the Agent (the "Amended and
Restated Financing Agreement"), and is subject to, and entitled to, all
provisions and benefits thereof an is subject to optional and mandatory
prepayment, in whole or in part, as provided therein. All capitalized terms used
herein shall have the meaning provided therefor in the Amended and Restated
Financing Agreement, unless otherwise defined herein.
The date and amount of the advances(s) made hereunder may be recorded on the
grid page or pages which are attached hereto and hereby made part of this Note
or the separate ledgers
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maintained by the Agent. The aggregate unpaid principal amount of all advances
made pursuant hereto may be set forth in the balance column on said grid page or
such ledgers maintained by the Agent. All such advances, whether or not so
recorded, shall be due as a part of this Note.
The Company confirms that any amount received by or paid to the Agent in
connection with the Amended and Restated Financing Agreement and/or any balances
standing to it credit on any of its accounts on the Agent's books under the
Amended and Restated Financing Agreement be applied in reduction of this Note,
but no balance or amounts shall be deemed to effect payment in whole or in part
of this Note unless the Agent shall have actually charged such account or
accounts for the purposes of such reduction or payment of this Note.
Upon the occurrence of any one or more of the Events of Default specified in the
Amended and Restated Financing Agreement or upon termination of the Amended and
Restated Financing Agreement, all amounts then remaining unpaid on this Note may
become, or be declared to be, immediately due and payable as provided in the
Amended and Restated Financing Agreement.
BUILDERS TRANSPORT, INC.
By:
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Title:
ATTEST:
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[Assistant] Secretary