AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 1 TO AMENDED AND RESTATED
This
Amendment No. 1 to Amended and Restated Credit Agreement (this "Agreement")
dated
as of July 18, 2005 is made by and among COVENANT ASSET MANAGEMENT, INC., a
Nevada corporation (the "Borrower"),
COVENANT TRANSPORT, INC., a Nevada corporation and the owner of 100% of the
issued and outstanding common stock of the Borrower (the "Parent"),
BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States ("Bank
of America"),
in
its capacity as administrative agent for the Lenders (as defined in the Credit
Agreement (as defined below)) (in such capacity, the "Agent"),
each
of the Lenders signatory hereto and each of the Guarantors (as defined in the
Credit Agreement) signatory hereto.
WITNESSETH:
WHEREAS,
the
Borrower, the Parent, the Agent and the Lenders have entered into that certain
Amended and Restated Credit Agreement dated as of December 16, 2004, (as hereby
amended and as from time to time hereafter further amended, modified,
supplemented, restated, or amended and restated, the "Credit
Agreement";
the
capitalized terms used in this Agreement not otherwise defined herein shall
have
the respective meanings given thereto in the Credit Agreement), pursuant to
which the Lenders have made available to the Borrower various revolving credit
facilities, including a letter of credit facility and a swing line facility;
and
WHEREAS,
each of
the Parent and the Guarantors has entered into a Facility Guaranty pursuant
to
which it has guaranteed certain or all of the obligations of the Borrower under
the Credit Agreement and the other Loan Documents, and the Parent, the Borrower
and the Guarantors have entered into various of the Security Instruments to
secure their respective obligations and liabilities in respect the Loans and
the
Loan Documents; and
WHEREAS,
the
Parent and the Borrower have advised the Agent and the Lenders that they desire
to amend certain provisions of the Credit Agreement as set forth below, and
the
Agent and the Lenders signatory hereto are willing so to effect such amendments
contained herein on the terms and conditions contained in this
Agreement;
NOW,
THEREFORE,
in
consideration of the premises and further valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment
to Credit Agreement.
Subject
to the terms and conditions set forth herein, the Credit Agreement is hereby
amended by deleting the definition of "Consolidated EBITDAR" in its entirety
and
inserting the following in its place:
"Consolidated
EBITDAR" means, with respect to the Parent and its Subsidiaries for any
Four-Quarter Period ending on the date of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) taxes on income, (iv) depreciation, (v) amortization, (vi)
Consolidated Lease Payments and (vii) for the applicable Four-Quarter Periods,
the charge of approximately
$19,600,000
taken by the Parent in the fourth fiscal quarter of 2004 related to increases
in
estimated casualty and worker's compensation claims, all of the above determined
on a consolidated basis in accordance with GAAP applied on a Consistent Basis,
subject to Acquisition Adjustments.
2. Conditions
Precedent.
This
Agreement and the amendments to the Credit Agreement provided in Paragraph
1
shall be
effective as of June 30, 2005 upon the satisfaction of the following conditions
precedent:
(a)
The
Administrative Agent shall have received each of the following documents or
instruments in form and substance reasonably acceptable to the Administrative
Agent:
(i) ten
(10)
original counterparts of this Agreement, duly executed by the Parent, the
Borrower, the Agent, each Guarantor, and such other Lenders as are necessary
to
constitute the Required Lenders; and
(ii) such
other documents, instruments, opinions, certifications, undertakings, further
assurances and other matters as the Agent shall reasonably request.
(b) all
fees
and expenses payable to the Agent and the Lenders (including the fees and
expenses of counsel to the Agent) accrued to date shall have been paid in full
to the extent invoiced prior to or on the effective date of this Agreement,
but
without prejudice to the later payment of accrued fees and expenses not so
invoiced.
3. Consent
of the Parent and the Guarantors.
Each of
the Parent and the Guarantors has joined in the execution of this Agreement
for
the purposes of consenting hereto and for the further purpose of confirming
its
guaranty of the Obligations of the Borrower pursuant to the Facility Guaranty
to
which the Parent or such Guarantor is party and its obligations under each
other
Loan Documents to which it is a party. The Parent and each Guarantor hereby
consents, acknowledges and agrees to the amendments of the Credit Agreement
set
forth herein and hereby confirms and ratifies in all respects the Facility
Guaranty and each other Loan Document to which the Parent or such Guarantor
is a
party and the enforceability of such Facility Guaranty and each such other
Loan
Document against the Parent and such Guarantor in accordance with its
terms.
4. Representations
and Warranties.
In
order to induce the Agent and the Lenders party hereto to enter into this
Agreement, each of the Parent and the Borrower represent and warrant to the
Agent and such Lenders as follows:
(a) The
representations and warranties made by the Parent and the Borrower in
Article
VIII
of the
Credit Agreement (after giving effect to this Agreement) and by each Loan Party
in each of the other Loan Documents to which it is a party are true and correct
in all material respects on and as of the date hereof, except to the extent
that
such representations and warranties expressly relate to an earlier
date;
(b) Since
the
date of the most recent financial reports of the Parent delivered pursuant
to
Section
9.1
of the
Credit Agreement, no act, event, condition or circumstance has occurred or
arisen which, singly or in the aggregate with one or more other
acts,
2
events,
occurrences or conditions (whenever occurring or arising), has had or could
reasonably be expected to have a Material Adverse Effect;
(c) The
Persons appearing as Guarantors on the signature pages to this Agreement
constitute all Persons who are required to be Guarantors pursuant to the terms
of the Credit Agreement and the other Loan Documents, including without
limitation all Persons who became Subsidiaries or were otherwise required to
become Guarantors after the Closing Date as a result of any merger, acquisition
or other reorganization, and each such Person has executed and delivered a
Facility Guaranty;
(d) This
Agreement has been duly authorized, executed and delivered by the Parent, the
Borrower and the Guarantors party hereto and constitutes a legal, valid and
binding obligation of such parties, except as may be limited by general
principles of equity or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally;
and
(e) No
Default or Event of Default has occurred and is continuing either immediately
prior to or immediately after the effectiveness of this Amendment.
5. Entire
Agreement.
This
Agreement, together with all the Loan Documents (collectively, the "Relevant
Documents"),
sets
forth the entire understanding and agreement of the parties hereto in relation
to the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter. No promise,
condition, representation or warranty, express or implied, not herein set forth
shall bind any party hereto, and not one of them has relied on any such promise,
condition, representation or warranty. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in the Relevant Documents, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Agreement
may
be changed, modified, waived or canceled orally or otherwise, except as
permitted pursuant to Section
13.6
of the
Credit Agreement.
6. Full
Force and Effect of Agreement.
Except
as hereby specifically amended, modified or supplemented, the Credit Agreement
and all other Loan Documents are hereby confirmed and ratified in all respects
by each party hereto and shall be and remain in full force and effect according
to their respective terms.
7. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original as against any party whose signature appears thereon, and
all
of which shall together constitute one and the same instrument.
8. Governing
Law.
This
Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the state of Tennessee.
9. Enforceability.
Should
any one or more of the provisions of this Agreement be determined to be illegal
or unenforceable as to one or more of the parties hereto, all other provisions
nevertheless shall remain effective and binding on the parties
hereto.
3
10. References.
All
references in any of the Loan Documents to the "Credit Agreement" shall mean
the
Credit Agreement, as amended hereby.
11. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Parent, the
Borrower, the Administrative Agent and each of the Guarantors and Lenders,
and
their respective successors, assigns and legal representatives; provided,
however, that neither the Parent, the Borrower nor any Guarantor, without the
prior consent of the Required Lenders, may assign any rights, powers, duties
or
obligations hereunder.
12. Expenses.
The
Parent and the Borrower agree to pay to the Agent all reasonable out-of-pocket
expenses of the Administrative Agent (including the fees and expenses of counsel
to the Agent) incurred or arising in connection with the negotiation and
preparation of this Agreement.
[Signature
pages follow.]
4
IN
WITNESS WHEREOF, the
parties hereto have caused this instrument to be made, executed and delivered
by
their duly authorized officers as of the day and year first above
written.
BORROWER:
|
COVENANT
ASSET MANAGEMENT, INC.,
a Nevada
corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title: EVP/CFO
|
PARENT:
|
COVENANT
TRANSPORT, INC.,
a
Nevada corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title: EVP/CFO
|
Signature
Page
GUARANTORS:
|
COVENANT
TRANSPORT, INC.,
a
Tennessee corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title:
EVP/CFO
|
XXXXXX
XXXX TRUCKING CO.,
an
Arkansas corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title:
EVP/CFO
|
SOUTHERN
REFRIGERATED TRANSPORT,
INC.,
an
Arkansas corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title:
EVP/CFO
|
XXXXXXXX.XXX,
INC.,
a
Nevada corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title:
EVP/CFO
|
CIP,
INC.,
a
Nevada corporation
|
By:
/s/
Xxxx X. Xxxxx
|
Name:
Xxxx
X. Xxxxx
|
Title:
EVP/CFO
|
Signature
Page
AGENT:
|
BANK
OF AMERICA, N.A., as
Agent
|
By:
/s/
Ronaldo Naval
|
Name: Ronaldo
Naval
|
Title: Vice
President
|
Signature
Page
LENDERS:
|
BANK
OF AMERICA, N.A.
|
By:
/s/
Xxxxxx Xxxxxx
|
Name: Xxxxxx
Xxxxxx
|
Title: Bank
of America
|
Signature
Page
NATIONAL
CITY BANK OF KENTUCKY
|
By:
/s/
Xxxxx X. Xxxxxxxx
|
Name: Xxxxx
X. Xxxxxxxx
|
Title: Senior
Vice President
|
Signature
Page
AMSOUTH
BANK
|
By:
/s/
W. Xxxxxx Xxxxxxxx
|
Name: W.
Xxxxxx Xxxxxxxx III
|
Title: VP
|
Signature
Page
SUNTRUST
BANK
|
By:
/s/
Xxxxxxx X. Xxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxx
|
Title: Director
|
Signature
Page
BRANCH
BANKING AND TRUST COMPANY
|
By:
/s/
L. Xxxxx Xxxxxxxx, SVP
|
Name: L.
Xxxxx Xxxxxxxx
|
Title: Senior
Vice President
|
Signature
Page
FIRST
TENNESSEE BANK NATIONAL ASSOCIATION
|
By:
/s/
Xxxxxx X. Xxxx
|
Name: Xxxxxx
X. Xxxx
|
Title: Vice
President
|
Signature
Page
BNP
PARIBAS
|
By:
/s/
Xxxx Xxxxxxx
|
Name: Xxxx
Xxxxxxx
|
Title: Vice
President
|
By:
/s/
Xxxxx X. Xxxxxx
|
Name: Xxxxx
X. Xxxxxx
|
Title: Director
|
Signature
Page