THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.18(d)
THIRD
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”)
is
entered into as of May 15, 2006, among CENTRAL FREIGHT LINES, INC., a Texas
corporation (“Borrower”),
Required
Lenders under the Credit Agreement, BANK OF AMERICA, N.A., in its capacity
as
Agent for Lenders under the Credit Agreement (the “Agent”),
and
the Parent under the Credit Agreement (hereinafter defined).
Reference
is made to the Amended and Restated Credit Agreement, dated as of March 24,
2005 (as amended, modified, waived, and supplemented, the “Credit
Agreement”),
among
the Borrower, the Agent, and Lenders party thereto. Unless otherwise defined
in
this Amendment, capitalized terms used herein shall have the meanings set forth
in the Credit Agreement; all Section references herein are to Sections in the
Credit Agreement; and all Paragraph references herein are to Paragraphs in
this
Amendment.
RECITALS
A. Borrower
has requested that Required Lenders amend certain provisions of the Credit
Agreement.
B. Subject
to the terms and conditions of this Amendment, Required Lenders are willing
to
agree to such amendments and waivers.
Accordingly,
for adequate and sufficient consideration, the parties hereto agree, as follows:
Paragraph
1. Amendments.
By execution of this Amendment, the Credit Agreement is hereby amended as
follows:
1.1 Article
II
is
amended by adding to the end thereof the following new Section 2.8 to read
as
follows:
“2.8 Additional
Fee.
On the
first day of each month commencing May 1, 2006 and on the Termination Date,
the
Borrower agrees to pay to the Agent, for the account of the Lenders, a fee
equal
to $1,000 times the number of days in the immediately preceding month on which
Availability is less than $5,000,000; but in no event shall the amounts payable
under this Section 2.8, together with other amounts payable hereunder exceed
the
Maximum Rate.”
1.2 Section
3.2 is amended in its entirety to read as follows:
“3.2 Termination
of Facility.
The
Borrower may terminate this Agreement upon at least ten (10) Business Days’
notice to the Agent and the Lenders, upon (a) the payment in full of all
outstanding Revolving Loans, together with accrued interest thereon, and the
cancellation and return of all outstanding Letters of Credit, (b) the
payment in full in cash of all reimbursable expenses and other Obligations,
and
(c) with respect to any LIBOR Revolving Loans prepaid, payment of the
amounts due under Section 4.4, if any. If this Agreement is terminated at
any time prior to May 15, 2007, whether pursuant to this Section or pursuant
to
Section 9.2, the Borrower shall pay to the Agent, for the account of the
Lenders, an early termination fee equal to 1.0% of the Maximum Revolver
Amount.
1.3 Section
7.23
is
hereby amended in its entirety to read as follows:
“(a) Minimum
EBITDA.
At all times from April 1, 2006 to August 26, 2006, as of the last day of each
fiscal month of the Borrower set forth below, the fiscal year-to-date (fiscal
year-to-date shall mean the immediately preceding fiscal months in calendar
year
2006) Adjusted EBITDA of Parent and its Subsidiaries shall not be less than
the
amount set forth opposite each date.
Fiscal
Month Ending
|
Minimum
Year-to-Date
Adjusted
EBITDA
|
March,
2006
|
($5,405,000)
|
April,
2006
|
($6,819,000)
|
May,
2006
|
($7,481,000)
|
June,
2006
|
($7,495,000)
|
July,
2006
|
($6,755,000)
|
August,
2006
|
($5,603,000)
|
(b) Minimum
Fixed
Charge Coverage Ratio.
At all
times from September 30, 2006, to and including May 26, 2007, as of the last
day
of each fiscal month of the Borrower set forth below, the Borrower will maintain
a Fixed Charge Coverage Ratio for the period commencing July 29, 2006 to the
date of determination for each period (“Calculation
Period”)
of not
less than the ratio set forth opposite of such period below.
Period
Ending
with
the Fiscal
Month
|
Calculation
Period
|
Minimum
Fixed Charge
Coverage
Ratio
|
September,
2006
|
July,
2006 - September, 2006
|
0.85:1.00
|
October,
2006
|
July,
2006 - October, 2006
|
0.95:1.00
|
November,
2006
|
July,
2006 - November, 2006
|
0.95:1.00
|
December,
2006
|
July,
2006 - December, 2006
|
0.95:1.00
|
January,
2007
|
July,
2006 - January, 2007
|
0.95:1.00
|
February,
2007
|
July,
2006 - February, 2007
|
0.95:1.00
|
March,
2007
|
July,
2006 - March, 2007
|
0.95:1.00
|
April,
2007
|
July,
2006 - April, 2007
|
1:00:1.00
|
May,
2007
|
July,
2006 - May, 2007
|
1:00:1.00
|
(c) At
all
times from June 30, 2007, as of the last day of each fiscal month of Borrower
set forth below, the Borrower will maintain a Fixed Charge Coverage Ratio for
each period of twelve consecutive fiscal months ending as of such fiscal month
of not less than the ratio set forth opposite period below:
Twelve
Months Ending
with
the Fiscal Month
|
Minimum
Fixed Charge
Coverage
Ratio
|
June,
2007
|
1:00:1.00
|
July,
2007
|
1:00:1.00
|
August,
2007
|
1:00:1.00
|
September,
2007
|
1:00:1.00
|
Each
month thereafter
|
1.10:1.00
|
(d) For
purposes of this Section
7.23,
on any
date compliance hereunder is required, compliance shall be determined on such
date with reference to the most recently reported monthly or quarterly financial
information as the case may be.
1.4 The
definition of “Borrowing
Base”
set
forth in Annex A to the Credit Agreement shall be amended in its entirety to
read as follows:
““Borrowing
Base”
means,
at any time, an amount equal to (a) the sum of (A) up to eighty-five
percent (85%) of the Net Amount of Eligible Accounts; plus
(B) the sum of (i) up to eighty-five percent (85%) of the Net Orderly
Liquidation Value of Eligible Rolling Stock adjusted for monthly depreciation
and for any dispositions of Rolling Stock, and (ii) up to eighty-five percent
(85%) of the cost of Eligible Rolling Stock acquired after the Closing Date
and
before the Effective Date (as defined in Second Amendment to the Amended and
Restated Credit Agreement dated as of November 9, 2005 between Borrower and
Required Lenders) (excluding sales tax, delivery charges or other soft costs)
and adjusted for monthly depreciation, but in no event shall the sum of (i)
and
(ii) exceed 90% of the net book value of such Eligible Rolling Stock;
minus
(b) $5,000,000, minus
(c)
Reserves from time to time established by the Agent in its reasonable credit
judgment; provided that the aggregate Revolving Loans advanced against Eligible
Rolling Stock shall not exceed the Maximum Rolling Stock Loan Amount, and
provided further that the aggregate Revolving Loans advanced against Eligible
Unbilled Accounts shall not exceed $5,000,000. For the purposes hereof,
depreciation shall be calculated based upon the average remaining life of the
Eligible Rolling Stock as shown on the then most recent appraisal.”
1.5 Exhibit
B, “Form
of Borrowing Base Certificate”
shall
be amended in its entirety to read as Exhibit B attached hereto.
Paragraph
2. Conditions.
(a) Notwithstanding
any contrary provision, this Amendment is not effective until the date (the
“Effective
Date”)
upon
which (i) the representations and warranties in this Amendment are true and
correct; (ii) after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing under the Credit Agreement; and
(iii) the Agent has received counterparts of this Amendment executed by
Borrower, Parent, and Required Lenders.
(b) Borrower
shall have paid to Agent for the benefit of Lenders an amendment fee as set
forth in the Fee Letter dated the date hereof among Borrower, Parent, Agent,
and
Lenders, in immediately available funds.
(c) Borrower
and Parent shall deliver to Agent such other agreements, documents, instruments,
opinions, certificates, and evidences as the Agent or Required Lenders may
reasonably request.
Paragraph
3. Acknowledgment
and Ratification.
As
a
material inducement to the Agent and Lenders to execute and deliver this
Amendment, Borrower and Parent (a) consent to the agreements in this
Amendment and (b) agree and acknowledge that the execution, delivery, and
performance of this Amendment shall in no way release, diminish, impair, reduce,
or otherwise affect the respective obligations of Borrower or Parent under
their
respective Loan Documents, which Loan Documents shall remain in full force
and
effect, and all Liens, guaranties, and rights thereunder are hereby ratified
and
confirmed and shall secure the Obligations. Notwithstanding anything to the
contrary set forth in any other Loan Document and in furtherance of the
acknowledgements and ratifications set forth herein, Borrower agrees that Agent
may, at Borrower’s expense, at any time and from time to time, take such steps
as Agent deems advisable or necessary to perfect or maintain perfection of,
the
liens in any and all of the Collateral.
Paragraph
4. Representations.
As
a
material inducement to Lenders to execute and deliver this Amendment, Borrower
and Parent represent and warrant to Lenders (with the knowledge and intent
that
Lenders are relying upon the same in entering into this Amendment) that as
of
the Effective Date and as of the date of execution of this Amendment,
(a) all representations and warranties in the Loan Documents are true and
correct in all material respects as though made on the date hereof, except
to
the extent that (i) any of them speaks to a different specific date or
(ii) the facts on which any of them were based have been changed by
transactions contemplated or permitted by the Credit Agreement, or (iii) any
of
them is waived herein and (b) no Default or Event of Default exists other than
as waived herein.
Paragraph
5. Expenses.
Borrower
agrees to pay all reasonable costs, fees, and expenses paid or incurred by
Agent
in connection with this Amendment, including, without limitation, attorney
fees
of Agent in connection with the negotiation, preparation, delivery, and
execution of this Amendment and any related documents.
Paragraph
6. Miscellaneous.
6.1 This
Amendment is a “Loan Document” referred to in the Credit Agreement, and the
provisions relating to Loan Documents in Article 13 of the Credit Agreement
are incorporated in this Amendment by reference. Unless stated otherwise (a)
the
singular number includes the plural and vice versa and words of any gender
include each other gender, in each case, as appropriate, (b) headings and
captions may not be construed in interpreting provisions, (c) this Amendment
must be construed, and its performance enforced, under Texas law, (d) if any
part of this Amendment is for any reason found to be unenforceable, all other
portions of it nevertheless remain enforceable, and (e) this Amendment may
be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must
be
construed together to constitute the same document.
6.2 The
Loan
Documents shall remain unchanged and in full force and effect, except as
provided in this Amendment, and are hereby ratified and confirmed. On and after
the Effective Date, all references to the “Credit
Agreement”
shall be
to the Credit Agreement as herein amended. The execution, delivery, and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any rights of Lenders under any Loan Document, nor
constitute a waiver under any of the Loan Documents.
Paragraph
7. ENTIRE
AGREEMENT.
THIS
AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT
MATTER OF THIS AMENDMENT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Paragraph
8. Parties.
This
Amendment binds and inures to Borrower, Parent, Agent, Lenders, and their
respective successors and assigns.
The
parties hereto have executed this Amendment in multiple counterparts to be
effective as of the Effective Date.
Remainder
of Page Intentionally Blank.
Signature
Pages to Follow.
BANK
OF AMERICA, N.A.,
|
||
as
Agent and a Lender
|
||
By:
|
/s/ Xxx X. Xxxxxxxxxxx | |
Xxx
X. Xxxxxxxxxxx
|
||
Senior
Vice President
|
TEXTRON
FINANCIAL CORPORATION,
|
||
as
a Lender
|
||
By:
|
/s/ Xxxxxx X. Xxxxxx, Xx. | |
Name:
|
Xxxxxx X. Xxxxxx, Xx. | |
Title:
|
Senior Account Executive |
BORROWER:
|
||
CENTRAL
FREIGHT LINES, INC.,
|
||
a
Texas corporation, as Borrower
|
||
By:
|
/s/ Xxxx Xxxx | |
Name:
|
Xxxx Xxxx | |
Title:
|
CFO |
GUARANTOR:
|
||
CENTRAL
FREIGHT LINES, INC.,
|
||
a
Nevada corporation, as Parent
|
||
By:
|
/s/ Xxxx Xxxx | |
Name:
|
Xxxx Xxxx | |
Title:
|
CFO |