AMENDMENT NO. 4
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment"), dated and
effective as of the 1st day of December, 2003, 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 by that
certain Amendment No. 1 to Credit Agreement dated as of August 28, 2001
("Amendment No.1"), by that certain Amendment No. 2 to Credit Agreement dated as
of February 26, 2003 ("Amendment No. 2"), and by that certain Amendment No. 3 to
Credit Agreement dated as of June 11, 2003, and as further 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
including (i) a letter of credit subfacility for the issuance of standby and
commercial letters of credit and (ii) a swing line subfacility; and
WHEREAS, the Agent desires to clarify the Agent's address in Section 13.2
of the Credit Agreement and in certain exhibits; and
WHEREAS, the Borrower and Parent have requested that the Credit Agreement
be amended in the manner set forth herein in order to (i) increase the maximum
amount available under the letter of credit subfacility from $50,000,000 to
$70,000,000; 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:
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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
$100,000,000, 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 $70,000,000 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 $70,000,000."
(c) Section 13.2 (b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"if to the Agent:
Bank of America, N.A., as Agent
Agency Management
Mailcode IL1-231-08-30
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
Mailcode: TN5-907-08-01
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(d) EXHIBIT H of the Credit Agreement is hereby deleted in its
entirety and replaced with EXHIBIT H attached hereto as EXHIBIT 1 for the
purpose of revising the address of the Agent.
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(e) EXHIBIT K of the Credit Agreement is hereby deleted in its
entirety and replaced with EXHIBIT K attached hereto as EXHIBIT 2 for the
purpose of revising the address of the Agent.
3. Conditions to Effectiveness. As a condition to the effectiveness of this
Amendment the Borrower shall cause the following to be delivered to the Agent:
(a) Ten (10) original counterparts of this Amendment executed by the
Borrower, the Parent, the Guarantors and each Required Lender;
4. Guarantors. Each of the Guarantors has joined in the execution of this
Amendment for the purpose of consenting to the amendment and to the waiver and
consent contained herein, 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 the 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, and as previously amended, modified and
supplemented by
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Amendment No.1, by Amendment No. 2, and by Amendment No. 3, 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 by this Amendment,
Amendment No.1, Amendment No.2, and Amendment No.3.
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.]
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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
------------------------------
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
GUARANTORS:
COVENANT TRANSPORT, INC., a Nevada
corporation
XXXXXX XXXX TRUCKING CO.
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: EVP/CFO
AMENDMENT NO. 4 TO CREDIT AGREEMENT
Signature Page 1 of 2
AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Agency Officer
Assistant Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
BRANCH BANKING AND TRUST COMPANY
By: /s/ R. Xxxxxx Xxxx
------------------------------
Name: R. Xxxxxx Xxxx
Title: Senior Vice President
AMENDMENT NO. 4 TO CREDIT AGREEMENT
Signature Page 2 of 2
EXHIBIT 1
EXHIBIT H
Form of Compliance Certificate
Bank of America, N.A., as Agent
Agency Management
Mailcode IL1-231-08-30
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Bank of America, N.A.
Mailcode: TN5-907-08-01
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of December 13,
2000 (the "Agreement") among Covenant Asset Management, Inc., a Nevada
corporation (the "Borrower"), Covenant Transport, Inc., a Nevada corporation,
the Lenders (as defined in the Agreement) and Bank of America, N.A., as Agent
for the Lenders ("Agent"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings therefor set forth in the Agreement.
The undersigned, a duly authorized and acting Authorized Representative, hereby
certifies to you as of __________ (the "Determination Date") as follows:
1. Calculations:
a. Consolidated Tangible Net Worth (Section 10.01(a))
Consolidated Tangible Net Worth (as of the Determination Date): $________________
Required Tangible Net Worth shall not be less than $136,223,081 at any time during the Fiscal
Quarter which contains the Closing Date.
Thereafter, for each Fiscal Quarter, at no time shall Consolidated Tangible Net Worth be less
than the sum of:
(a) Minimum Consolidated Net Worth $________________
Required for previous Fiscal Quarter
(b) 50% of Consolidated Net Income $________________
for Fiscal Quarter
(c) 100% of the net proceeds of $________________
Exhibit 1-1
any equity issuance during
Fiscal Quarter
(d) Total: sum of (a) plus (b) plus (c) $________________
b. Consolidated Leverage Ratio (Section 10.01(b))
The ratio of Consolidated Total Adjusted Indebtedness (determined as at such date) to (ii)
Consolidated EBITDAR shall not exceed 3.00 to 1.00, calculated at the end of each Four Quarter
Period.
(a) Consolidated Total Adjusted Indebtedness $________________
With respect to the Parent and its Subsidiaries,
i. Obligations under Capital Leases $__________
ii. Amounts outstanding under Permitted
Receivables Securitizations $__________
iii. Synthetic Lease Obligations $__________
iv. Amounts outstanding under Senior
Notes $__________
v. Subordinated Indebtedness $__________
vi. Letter of Credit Outstandings $__________
vii. Revolving Credit Outstandings $__________
viii. Swing Line Outstandings $__________
ix. Other Indebtedness for Money
Borrowed (without double-counting
Outstandings) $__________
x. Present value of Consolidated
Lease Payments (see attached
computations) $__________
xi. Contingent Obligations (Guaranties) $__________
TOTAL: [i + ii + iii + iv + v + vi +
vii + viii + ix + x + xi] = $__________
(b) Consolidated EBITDAR $________________
i. Consolidated Net Income $__________
ii. Consolidated Interest Expense $__________
iii. Taxes on income $__________
iv. Depreciation $__________
v. Amortization $__________
vi. Consolidated Lease Payments $__________
TOTAL: [i + ii + iii + iv + v + vi] = $__________
(c) Actual Ratio of (a) to (b) $________________
Maximum Ratio: 3.00 to 1.00
Exhibit 1-2
c. Consolidated Fixed Charge Coverage Ratio (Section 10.01(c))
The ratio of (i) Consolidated EBITDAR for such period less (without duplication) taxes on
income paid in cash during such period, to (ii) the sum of Consolidated Fixed Charges for such
period plus twenty-five percent (25%) of Revolving Credit Outstandings as of the date of
computation shall not be less than 1.20 to 1.00, calculated at the end of each Fiscal Quarter.
(a) Consolidated EBITDAR (from (b) above) $________________
(b) Taxes on income paid in cash $________________
(c) (a) minus (b) $________________
(d) Consolidated Fixed Charges $________________
i. Consolidated Interest Expense $________________
ii. Current maturities of
Consolidated Indebtedness $________________
iii. Consolidated Lease Payments $________________
TOTAL: [i + ii +iii] = $________________
(e) 25% times Revolving Credit Outstandings $________________
(f) (d) plus (e) $________________
(g) Actual Ratio of (c) to (f) $________________
Minimum Ratio: 1.20 to 1.00
d. Restricted Payments (Section 10.8)
The sum of the aggregate amount of Permitted Share Repurchases plus the aggregate amount of
cash dividends declared by the board of directors of the Parent and paid thereby to its
stockholders from the Closing Date until the Stated Termination Date shall not exceed the sum
of $24,000,000 plus 50% of Consolidated Net Income for each Fiscal Quarter commencing
September 30, 2000 (as reduced by 100% of the amount of any negative Consolidated Net Income
during any such period).
(a) Permitted Share Repurchases $________________
(aggregate amount since Closing Date)
(b) Permitted cash dividends by Parent $________________
(aggregate amount since Closing Date)
(c) Sum of (a) plus (b) $________________
(d) $24,000,000 $24,000,000
Exhibit 1-3
(e) 50% of the total aggregate amount of $________________
Consolidated Net Income for each
Fiscal Quarter ending on or after
September 30, 2000
(f) 100% of the total aggregate amount of $________________
negative Consolidated Net Income for
each Fiscal Quarter ending on or after
September 30, 2000 (expressed as a positive
number)
(g) Sum of (d) plus (e), less (f) $________________
Amount in (c) shall not exceed, at any time, the amount in (g).
2. No Default
A. Since __________ (the date of the last similar certification), (a)
the Borrower has not defaulted in the keeping, observance, performance or
fulfillment of its obligations pursuant to any of the Loan Documents; and
(b) no Default or Event of Default specified in Article XI of the Agreement
has occurred and is continuing.
B. If a Default or Event of Default has occurred since __________ (the
date of the last similar certification), the Borrower proposes to take the
following action with respect to such Default or Event of Default:
_____________________________________________________. (Note, if no Default
or Event of Default has occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 9.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, ____.
By: _______________________________________
Authorized Representative
Name: ______________________________________
Title:______________________________________
Exhibit 1-4
EXHIBIT 2
EXHIBIT K
Form of Borrowing Base Certificate
Bank of America, N.A., as Agent
Agency Management
Mailcode IL1-231-08-30
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Bank of America, N.A.
Mailcode: TN5-907-08-01
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of December 13,
2000, (as from time to time amended, restated, modified, or supplemented the
"Agreement") among Covenant Asset Management, Inc., a Nevada corporation
("Borrower"), Covenant Transport, Inc., a Nevada corporation, the Lenders (as
defined in the Agreement) and Bank of America, N.A., as Agent for the Lenders
("Agent"). Capitalized terms used but not otherwise defined herein shall have
the respective meanings therefor set forth in the Agreement. The undersigned,
duly authorized and acting Authorized Representatives of the Borrower and the
Parent, hereby certifies to you as of _____________, 20___ (the "Determination
Date") as follows:
Availability under Revolving Credit Facility
I. Eligible Revenue Equipment
Borrowing
Revenue Equipment: Gross Eligible Advance % Base Amount
Southern Refrigerated Transport, Inc. _______ ________ ________ ___________
Covenant Transport, Inc. _______ ________ ________ ___________
Total: _______ ________ ________ ___________(I)
II. Aggregate Senior Note Outstandings: ___________(II)
Exhibit 2-1
TOTAL BORROWING BASE (I-II): ______________________________*
*Not to exceed Total Revolving
Credit Commitment.
III.
1. Total Borrowing Base: $____________________
2. Revolving Credit Outstandings: $____________________
3. Letter of Credit Outstandings: $____________________
4. Swing Line Outstandings: $____________________
5. Total Outstandings [2+3+4]: $____________________
6. Availability [1-5]: $____________________*
* If negative, immediate prepayment of the amount of such deficit is required.
IN WITNESS WHEREOF, we have executed this Certificate this __ day of
_____________, 20___.
COVENANT ASSET MANAGEMENT, INC.
By:________________________________
Name: _____________________________
Title:_____________________________
COVENANT TRANSPORT, INC.
By: _______________________________
Name: _____________________________
Title:_____________________________
Exhibit 2-2
