AMENDMENT NO. 1
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"), dated and
effective as of the 28 day of August, 2001, 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, in its capacity as a Lender ("Bank
of America"), and each other financial institution which is a party to the
Credit Agreement (as defined below) and has executed and delivered a signature
page hereto (hereinafter such financial institutions may be referred to
individually as a "Lender" or collectively as the "Lenders"); and
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as agent for the
Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Lenders and the Agent are parties to
that certain Credit Agreement dated as of December 13, 2000 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), pursuant
to which the Lenders agreed to make available to the Borrower a revolving credit
facility of up to $120,000,000 including (i) a letter of credit subfacility of
up to $10,000,000 for the issuance of standby and commercial letters of credit
and (ii) a swing line subfacility of up to 5,000,000; and
WHEREAS, the Borrower and the Parent have requested that the Credit
Agreement be amended in the manner set forth herein in order to increase the
maximum amount available under the letter of credit subfacility from $10,000,000
to $20,000,000, and subject to the terms and conditions of Section 13.6 of the
Credit Agreement and those set forth below, the Agent and the Lenders are
willing to agree to the requested amendment;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. All capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement.
2. Amendment to the Credit Agreement.
a. The first "Whereas" clause on the first page of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"WHEREAS, the Borrower has requested that the Lenders make
available to the Borrower a revolving credit facility of up to
$120,000,000, the proceeds of which are to be used as provided in
Section 2.2 hereof and which shall include a letter of credit facility
of up to $20,000,000 for the issuance of standby and commercial
letters of credit and a swing line facility of up to $5,000,000; and"
b. The following definition in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"'Total Letter of Credit Commitment' means an amount not to
exceed $20,000,000."
3. Conditions to Effectiveness. As a condition to the effectiveness of this
Amendment the Borrower shall cause to be delivered to the Agent ten (10)
original counterparts of this Amendment executed by the Borrower, the Parent and
each Lender.
4. Guarantors. Each of the Guarantors has joined in the execution of this
Amendment for the purpose of consenting to the amendment contained herein,
including the increase of the Total Letter of Credit Commitment of an amount not
to exceed $20,000,000 and reaffirming its guaranty of the Obligations pursuant
to the terms of the Parent Guaranty Agreement and the Subsidiary Guaranty
Agreement.
5. Representations and Warranties. The Borrower and Parent hereby certify
that:
(a) The representations and warranties made by Borrower and Parent in
Article VIII of the Credit Agreement are true on and as of the date hereof
except that (i) the financial statements referred to in Section 8.6 shall
be those most recently furnished to the Agent pursuant to Section 9.1, and
(ii) the proviso at the end of Section 8.1(b) is no longer applicable, as
CTI is now qualified to transact business in the State of Ohio;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower, the Parent, or their Subsidiaries,
taken as a whole, since the date of the most recent financial reports of
the Parent and its Subsidiaries received by the Agent and each Lender under
Section 9.1 thereof; and
(c) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a Default
or an Event of Default on the part of the Borrower or the Parent under the
Credit Agreement, the Notes or any other Loan Document either immediately
or with the lapse of time or the giving of notice, or both.
6. Entire Agreement. This Amendment, together with Credit Agreement and
other Loan 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 Credit
Agreement and other Loan 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 Amendment may be changed, modified, waived or
canceled orally or otherwise, except as permitted pursuant to Section 13.6 of
the Credit Agreement.
7. 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.
8. Counterparts. This Amendment 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.
9. Governing Law. This Amendment shall in all respects be governed by, and
construed in accordance with, the laws of the state of Tennessee.
10. Enforceability. Should any one or more of the provisions of this
Amendment 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.
11. References. All references in any of the Loan Documents to the "Credit
Agreement" shall mean the Credit Agreement as amended hereby.
12. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the Borrower, the Parent, the Lenders, the Agent and their
respective successors, assigns and legal representatives; provided, however,
that neither the Borrower nor the Parent, without the prior consent of the
Lenders, may assign any rights, powers, duties or obligations hereunder.
13. Expenses. Borrower agrees to pay to the Agent all reasonable
out-of-pocket expenses (including reasonable legal fees and expenses of special
counsel to the Agent) incurred or arising in connection with the negotiation and
preparation of this Amendment.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
COVENANT ASSET MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: CFO/Treasurer
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PARENT:
COVENANT TRANSPORT, INC., a Nevada
corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
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Title: CFO/Treasurer
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GUARANTORS:
COVENANT TRANSPORT, INC., a Nevada
corporation
XXXXXX XXXX TRUCKING CO.
TERMINAL TRUCK BROKER, INC.
XXXXXXXX.XXX, INC.
CIP, INC.
SOUTHERN REFRIGERATED TRANSPORT, INC.
XXXX XXXXX TRUCKING, INC.
COVENANT TRANSPORT, INC., a Tennessee
corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: CFO/Treasurer
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AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
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Title: SVP
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LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------
Title: SVP
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FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
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Title: Director
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SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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SunTrust Bank
BANK ONE, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: First Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
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Title: AVP
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