EXHIBIT 10.4(c)
SECOND AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
AND FIRST AMENDMENT TO REVOLVING CREDIT NOTE
THIS SECOND AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT AND SECOND
AMENDMENT TO REVOLVING CREDIT NOTE (the "Amendment") is made this the fifth day
of February, 2003, by and between SUNTRUST BANK (the "Lender"), and CENTRAL
FREIGHT LINES, INC., a Texas corporation (the "Borrower").
RECITALS:
A. Borrower and Lender entered into that certain Revolving Credit
Loan Agreement April 30, 2002 (as previously amended and as amended from time to
time, the "Loan Agreement"). In connection with the Loan Agreement, Borrower
executed a Revolving Credit Note dated April 30, 2002 (as previously amended and
as amended from time to time, the "Revolving Credit Note").
B. The Borrower has requested that Lender amend the Loan
Agreement and the Revolving Credit Note to increase the principal amount
available thereunder and to make other amendments to the Loan Agreement as set
forth herein.
C. Terms not defined herein shall have the meanings ascribed to
such terms in the Loan Agreement and the Revolving Credit Note.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations herein, the parties hereto agree that the Loan Agreement and the
Revolving Credit Note are hereby amended and modified as follows:
Section 1. The principal amount available under the Revolving
Credit Note is amended from $14,000,000 to $24,000,000 for the period commencing
as of the date of this Amendment and ending on May 5, 2003. On May 5, 2003, the
principal amount available under the Revolving Credit Note shall be reduced to
$14,000,000.
Section 2. The definition of "Revolving Commitment" in
Section 1.1 of the Loan Agreement is deleted and the following is substituted in
lieu thereof:
"Revolving Commitment" shall mean the obligation of the Lender
to make Advances to the Borrower, subject to Section 2.1 hereof, in an
aggregate principal amount not exceeding $24,000,000. On May 5, 2003,
the Revolving Commitment shall be reduced to $14,000,000
Section 3. All other references to $14,000,000 as the Revolving
Commitment and the principal amount of the Revolving Credit Note, as set forth
in the Loan Agreement are hereby amended to conform to the amendments as
expressed in this Amendment.
Section 4. Section 1.1 of the Loan Agreement concerning
"Definitions" is hereby amended to add the following definition:
"Moyes Guaranty" shall mean that certain Guaranty executed by
Xxxxx X. Xxxxx and Lender dated February 5, 2003, pursuant to which
Xxxxx X. Xxxxx guarantees, in accordance with the terms thereof, a
portion of the Obligations, as such guaranty may be amended or restated
from time to time.
Section 5. Article 8 of the Loan Agreement concerning "Events
of Default" is amended to add the following as subsection (r) thereof as an
additional Event of Default:
(r) A default or event of default occurs under the terms
of the Moyes Guaranty.
Section 6. Section 6.1 of the Loan Agreement concerning "Minimum
Tangible Net Worth" is amended to substitute $30,669,000 for $25,000,000 and to
commence the addition of 50% of Net Income to such new base net worth beginning
January 1, 2003. In addition, as of the closing of any initial public offering
of equity securities by the Borrower, Minimum Tangible Net Worth shall be
increased by the net proceeds to the Borrower, Parent, and its consolidated
group less a dividend of all previously taxed income, less a separation payment
to Central Refrigerated of up to $8.5 million (and notwithstanding anything to
the contrary, such payment is hereby approved and any default under the Loan
Agreement is waived), and less the booking of a non-cash deferred tax liability
upon conversion to a C corporation.
Section 7. Section 6.2 concerning Minimum EBITDA is deleted and
the following is substituted in lieu thereof:
SECTION 6.2 MINIMUM EBITDA. The Borrower will maintain
its EBITDA as of the last day of the periods set forth below of not
less than the amounts set forth below:
From January 1, 2003 to $ 7,000,000
the last day of the first fiscal quarter
From January 1, 2003 to $ 17,000,000
the last day of the second fiscal quarter
From January 1, 2003 to $ 28,000,000
the last day of the third fiscal quarter
From January 1, 2003 to
the last day of the fiscal year 2003
and thereafter on a rolling
four fiscal quarter basis $ 38,000,000
Section 8. Effective December 31, 2002, Section 6.3 concerning
"Maximum Lease Adjusted Leverage Ratio" is deleted and the following is
substituted in lieu thereof:
SECTION 6.3 MAXIMUM LEASE ADJUSTED LEVERAGE RATIO. The
Lease Adjusted Leverage Ratio of the Borrower for the period ending
December 31, 2002 shall not be
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greater than 3.5 to 1.0. Thereafter, the Borrower shall maintain a
Lease Adjusted Leverage Ratio not greater than the ratios set forth
below, measured on a rolling thirteen Fiscal Period basis, for the
periods set forth below:
End of 1st Quarter of 2003 3.5 to 1.0
End of 2nd Quarter of 2003 3.25 to 1.0
End of 3rd Quarter of 2003 3.0 to 1.0
End of 4th Quarter of 2003 2.75 to 1.0
Section 9. Section 7.4 of the Loan Agreement concerning
"Investments, Loans, Etc." is amended to the extent that the aggregate amount of
the Moyes Note and all other loans to Xxxxx Xxxxx and his Affiliates may be
increased from $8,000,000 principal amount to $18,000,000.
Section 10. Section 7.11 shall be amended to read as follows:
"Borrower will not pay or declare any dividends during any
fiscal year in excess of 40% of Borrower's Net Income for such fiscal
year; provided, that contemporaneously with an initial public offering,
Borrower and Parent may declare and pay a dividend equal to all
previously taxed S corporation income."
Section 11. Concurrently with the execution and delivery of this
Amendment, Borrower shall pay Lender a fee of $50,000.00.
Section 12. Section 5.9 of the Loan Agreement concerning "Use of
Proceeds and Letter of Credit" is amended to the extent that up to $10,000,000
of proceeds of the Revolving Loan may be used to increase loans to Moyes or his
Affiliates under the Moyes Note or otherwise.
Section 13. The following affirmative covenant is added as
Section 5.12 of the Loan Agreement:
SECTION 5.12 PERMANENT PREPAYMENT OF REVOLVING CREDIT
LOAN. In the event the Borrower (or the Parent) shall complete a public
offering of its shares, the Borrower will require that the Moyes Note
shall be permanently repaid in full and terminated. Borrower and Parent
shall make it a condition to any advance to or for the benefit of Moyes
and/or his Affiliates that, in the event the indebtedness of SPP is
refinanced and produces proceeds in excess of $45,000,000, the
Revolving Credit Note shall be permanently prepaid with the first
$10,000,000 of such excess proceeds thereof (or if the excess is less
than $10,000,000, the full amount of such excess), and the Revolving
Commitment shall be permanently reduced by such prepayment. In the
event of a prepayment in accordance with the immediately preceding
sentence, the Moyes Guaranty shall be reduced dollar-for-dollar with
the amount of such prepayment, and upon prepayment of the entire
$10,000,000, the Moyes Guaranty shall terminate in its entirety and be
of no further force or effect whatsoever.
Section 14. As a condition subsequent to Lender's execution of
this Amendment, within thirty (30) days after the date hereof, Xxxxx X. Xxxxx
shall: (i) execute and deliver to Lender a mortgage (or deed of trust, as
applicable) granting a first-priority mortgage lien (or deed of trust lien, as
applicable) on his truck terminals leased to Borrower located in Fort Worth,
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Beaumont, and Eagle Pass, Texas. Prior to the deliver of such mortgages (or
deeds of trust), Borrower shall deliver title reports to Lender which fully
disclose all material liens and encumbrances. The failure to comply with this
affirmative covenant shall be an Event of Default under Section 8.1(d).
Section 15. Lender acknowledges that Borrower is owed a
receivable amounting to approximately $1,000,000 by former director Xxxxxx Xxxxx
relating to the purchase of tires by Xxxxxx Xxxxx from Borrower and waives any
default arising from such transactions, including any default arising under
Sections 7.4 and 7.6 of the Loan Agreement. It is Borrower's intent to work down
the receivable, but it may be necessary to facilitate further purchases by Xx.
Xxxxx during 2003, which Lender agrees to permit, without default, so long as
the total amount outstanding at any one time does not exceed $1,000,000.
Section 16. Effective as of the making of the prepayment required
by new Section 5.12 of the Loan Agreement (as set forth in Section 13 above),
Section 7.11 shall be amended to permit SPP to raise the rent charged under the
SPP Lease to an amount not to exceed the amount derived by applying a
capitalization rate equal to the greater of (x) eight percent per annum or (y)
four percentage points greater than the treasury rate for US government
securities having a maturity most nearly equal to the remaining lease term at
the time such rate is established, multiplied by an assumed value of the
properties of $90,000,000. Such rental amount may be increased by applying the
same formula to the purchase price of any additional property purchased by SPP
and rented by Borrower for use in its operations after the date hereof.
Section 17. Lender acknowledges that, effective January 1, 2003,
Borrower has changed its fiscal year to a year ending December 31 consisting of
four quarters, each containing 13 weeks, from its former fiscal year ended
December 31 consisting of three quarters of 12 weeks and a fourth quarter of 16
weeks. Lender consents to such change and waives any default arising therefrom.
Section 18. Lender acknowledges that, effective December
31, 2002, Borrower disposed of Central Refrigerated by transferring the stock of
Central Refrigerated to Xxxxx Xxxxx and the Moyes Family Trust in exchange for,
among other things, the cancellation of debt in the principal amount of $14.7
million owed by Borrower to such persons. Parent also agreed to make a
separation payment of $8.3 million to Central Refrigerated solely out of
offering proceeds should Parent complete an initial public offering. Lender
consents to such disposition and waives any default arising therefrom, including
from the separation payment.
Section 19. Except as provided herein, the Loan Agreement, the
Revolving Credit Note and the Guaranty shall remain unamended and shall be in
full force and effect.
Section 20. This modification shall be governed by and construed
pin accordance with the laws of the State of Tennessee.
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IN WITNESS WHEREOF, the undersigned by and through their duly
authorized officers hereby execute this Amendment as of the day and date first
set forth above.
CENTRAL FREIGHT LINES, INC.,
a Texas corporation
By: /s/ Xxxx Xxxx
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Title: CFO
SUNTRUST BANK
By: /s/ Xxxxx Xxxxxx
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Title: Managing Director
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CONSENT OF GUARANTOR
The undersigned, as Guarantor under a Guaranty dated as of April 30,
2002, hereby executes this Second Amendment to Revolving Credit Loan Agreement
and First Amendment to Revolving Credit Note to evidence its consent thereto, as
well as the transactions contemplated thereby, and agrees that its Guaranty
remains in full force and effect for the Loan Agreement and the Note, as
increased and as amended.
CENTRAL FREIGHT LINES, INC.,
a Nevada corporation
By: /s/ Xxxx Xxxx
Date: February 5, 2003
Title: CFO
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