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EXECUTION COPY
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CLARIFICATION OF INTENT AND
AMENDMENT NO. 1
TO LOAN AGREEMENT
THIS CLARIFICATION OF INTENT AND AMENDMENT NO. 1 TO LOAN AGREEMENT, dated
as of March 7, 2001 (this "Amendment"), is entered into by and among CVTI
RECEIVABLES CORP., as borrower ("Borrower"), COVENANT TRANSPORT, INC., as master
servicer ("Master Servicer"), THREE PILLARS FUNDING CORPORATION, as lender and
SUNTRUST EQUITABLE SECURITIES CORPORATION, as administrator ("Administrator").
Capitalized terms used and not otherwise defined herein are used as defined in
the Agreement (as defined below and amended hereby).
WHEREAS, the parties hereto have entered into that certain Loan Agreement,
dated as of December 12, 2000 (the "Agreement");
WHEREAS, the parties hereto wish to amend the Agreement to, among other
things, clarify the right of Borrower to sell, assign or otherwise dispose of
its assets and engage in any business as discussed below;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments. The Agreement is, as of the Amendment Effective Date
defined in Section 2 hereof, hereby amended as follows:
(a) The definition of "Servicing Fee Rate" in Section 1.1 of the Agreement
is hereby amended and restated in its entirety to read as follows:
Servicing Fee Rate: 2.40%.
(b) It is intended that Borrower have the ability to sell any portion or
all of the Collateral at times the Borrower chooses, subject to the prior
written consent of Administrator, therefore, Section 9.2(a) of the Agreement is
hereby amended and restated in its entirety to read as follows:
(a) Sales, Liens, Etc. Except pursuant to, or as contemplated by, the
Transaction Documents, Borrower shall not sell, assign (by operation
of law or otherwise) or otherwise dispose of, or create or suffer to
exist voluntarily or, for a period in excess of 5 days, involuntarily
any Adverse Claims upon or with respect to any of its assets,
including, without limitation, the Collateral, any interest therein or
any right to receive any amount from or in respect
thereof; provided however, that Borrower may sell, assign or otherwise
dispose of all or any part of the Collateral on any day with the prior
written consent of Administrator and the Rating Agencies (which
consent may be withheld for any reason or no reason).
(c) It is intended that the Borrower may engage in certain activities and
own assets of any type, subject only to the prior written consent, in each case,
of Administrator, therefore, Section 9.2(h) of the Agreement is hereby amended
and restated in its entirety to read as follows:
(h) Business Restrictions. Without the prior written consent of
Administrator and the Rating Agencies in each case (which consent may
be withheld for any reason or no reason), Borrower shall not (i)
engage in any business or transaction, or be a party to any document,
agreement or instrument, other than the Transaction Documents or those
incidental to the purposes thereof or (ii) make any expenditure for
any assets (other than Receivables) if such expenditure, when added to
other such expenditures made during the same calendar year would, in
the aggregate, exceed $10,500; provided, however, that the foregoing
will not restrict Borrower's ability to pay servicing compensation as
provided herein and, so long as no Significant Event or Unmatured
Significant Event shall have occurred and be continuing, and that
Borrower's tangible net worth, after giving effect thereto, shall not
be less than $2,000,000, Borrower's ability to pay amounts due on the
Originator Note or other payments or distributions legally made to
Borrower's equity owners.
(d) Section 10.2(e) of the Agreement is hereby amended and restated in its
entirety to read as follows:
(e) Dilution Ratio. The Dilution Ratio shall be equal to or exceed
2.25% on a rolling three month average basis.
SECTION 2.. Amendment Effective Date. This Amendment shall be effective as
of December 12, 2000 (the "Amendment Effective Date").
SECTION 3. Reference to and Effect on the Agreement and the Related
Documents. Upon the effectiveness of this Amendment, (i) each of the Borrower
and the Master Servicer hereby reaffirms all representations and warranties made
by it in Article VIII of the Agreement (as amended hereby) and agrees that all
such representations and warranties shall be deemed to have been remade as of
the effective date of this Amendment, (ii) each of the Borrower and the Master
Servicer hereby represents and warrants that no Significant Event or Unmatured
Significant Event, shall have occurred and be continuing and (iii) each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import shall mean and be, and any references to the Agreement
in any other document, instrument or agreement executed and/or delivered in
connection with the Agreement shall mean and be, a reference to the Agreement as
amended hereby.
SECTION 4. Effect. Except as otherwise amended by this Amendment, the
Agreement shall continue in full force and effect and is hereby ratified and
confirmed.
SECTION 5. Governing Law. This Amendment will be governed by and construed
in accordance with the laws of the State of New York.
SECTION 6. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of one or more provisions of this Amendment in one jurisdiction
shall not have the effect of rendering such provision or provisions
unenforceable in any other jurisdiction.
SECTION 7. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
CVTI RECEIVABLES CORP.,
as Borrower
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: CFO/Treasurer
COVENANT TRANSPORT, INC.,
as Master Servicer
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: CFO/Treasurer
THREE PILLARS FUNDING CORPORATION,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
SUNTRUST EQUITABLE SECURITIES
CORPORATION, as Administrator
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: Managing Director/Senior Risk
Officer
