ATLLIB01 496976.7
ATLLIB01 496976.7
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") made
and entered into effective as of December 31, 1997 (the "Effective Date"), by
and among COVENANT TRANSPORT, INC., a Tennessee corporation ("CTI"), COVENANT
LEASING, INC., a Nevada corporation ("Leasing"; CTI and Leasing are sometimes
referred to herein individually as a "Borrower" and collectively as the
"Borrowers"), ABN AMRO BANK N.V., acting through its Atlanta Agency, THE FIRST
NATIONAL BANK OF CHICAGO (as assignee of NBD Bank), NATIONSBANK, N.A. (formerly
known as NationsBank, N.A. (South)) and FIRST AMERICAN NATIONAL BANK
(collectively, the "Banks"), and ABN AMRO BANK N.V., acting through its Atlanta
Agency, as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, CTI, the Agent and the Banks entered into a certain Credit
Agreement, dated as of January 17, 1995, as amended by that certain First
Amendment to Credit Agreement and Waiver, dated as of October 15, 1995, among
CTI, the Agent and the Banks, as further amended by that certain Second
Amendment to Credit Agreement and Waiver, dated as of April 12, 1996, among CTI,
the Agent and the Banks, and as further amended by that certain Third Amendment
to Credit Agreement and Consent, dated as of March 31, 1997, among the
Borrowers, the Agent and the Banks (the "Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meanings given such
terms in the Credit Agreement, as amended by this Amendment), whereby the Banks
agreed to make certain loans and grant other financial accommodations to or for
the benefit of the Borrowers, subject to the terms, covenants and conditions
contained in the Credit Agreement; and
WHEREAS, the Borrowers have requested that the Agent and the Banks amend
the Credit Agreement to increase the Revolving Credit Commitments of the Banks
to $100,000,000, and to modify certain other terms of the Credit Agreement as
set forth in this Amendment, and the Agent and the Banks are willing to agree to
such modifications subject to the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments to Section 1.1.
(a) Subject to the terms and conditions of this Amendment, Section
1.1(a)(i) of the Credit Agreement is hereby amended (i) by deleting the
reference to the amount "$70,000,000" contained in the ninth line thereof and
substituting in lieu thereof the amount "$85,000,000", and (ii) by deleting the
reference to the amount "$85,000,000" contained in the last line thereof and
substituting in lieu thereof the amount "$100,000,000".
(b) Subject to the terms and conditions of this Amendment, Section
1.1(e)(v) of the Credit Agreement is hereby amended (i) by deleting the
reference to the amount "$100,000,000" contained in the third line thereof and
substituting in lieu thereof the amount "$125,000,000" and (ii) by adding at the
end thereof the following "and (z) no such increase in Commitments shall be
effective until any and all consents or approvals of the holders of the Senior
Notes required under the Intercreditor Agreement shall have been obtained or
waived".
1. Amendment to Section 1.5(b). Subject to the terms and conditions of
this Amendment, Section 1.5(b) of the Credit Agreement is hereby amended by
deleting the words ".225% per annum" from the third line thereof and
substituting in lieu thereof the words "the Applicable Commitment Fee
Percentage".
3. Amendment to Section 5.6. Subject to the terms and conditions of this
Amendment, Section 5.6 of the Credit Agreement is hereby amended (i) by deleting
the reference to "10%" contained in the sixth line thereof and substituting in
lieu thereof "20%" and (ii) by deleting the reference to the amount "$1,000,000"
contained in the last line thereof and substituting in lieu thereof the amount
"$10,000,000".
4. Amendment to Section 5.11. Subject to the terms and conditions of this
Amendment, Section 5.11 is hereby amended (i) by deleting the reference to the
amount "$10,000,000" in subsection (f) thereof and substituting in lieu thereof
the amount "$25,000,000" and (ii) by inserting at the end of such section the
following new subsection (g):
(g) Other Debt consented to in writing in advance by the
Agent and the Required Banks.
5. Amendment to Section 5.12. Subject to the terms and conditions of this
Amendment, Section 5.12 of the Credit Agreement is hereby amended (i) by
deleting the reference to the amount "$60,000,000" contained in the second line
thereof and substituting in lieu thereof the amount "$75,000,000" and (ii) by
deleting the reference to the date "September 30, 1994" contained in the third
line thereof and substituting in lieu thereof the date "September 30, 1997".
6. Amendment to Section 5.13. Subject to the terms and conditions
of this Amendment, Section 5.13 of the Credit Agreement is hereby amended to
read as follows:
Section 5.13 Consolidated Adjusted Debt to Consolidated EBITDAR.
Permit the ratio of Consolidated Adjusted Debt to Consolidated EBITDAR, as
determined at the end of each fiscal quarter or year and based on the
consecutive four-quarter period ending therewith, to exceed 3.0 to 1.0.
7. Amendment to Section 6.1(c)(iii). Subject to the terms and conditions
of this Amendment, Section 6.1(c)(iii) of the Credit Agreement is hereby amended
by deleting the words "a quarterly basis" contained in line three thereof and
substituting in lieu thereof the words "an annual basis".
8. Amendment to Section 7.1(d). Subject to the terms and conditions of
this Amendment, Section 7.01(d) of the Credit Agreement is hereby amended by
deleting the reference to the amount "$150,000" contained in the third line
thereof and substituting in lieu thereof the amount "$2,000,000".
9. Amendments to Section 10.1. Subject to the terms and conditions
of this Amendment, Section 10.1 of the Credit Agreement is hereby amended as
follows:
(a) by modifying the definitions of the terms "Applicable
Margin", "Applicable Percentage", "Fixed Charge Coverage Ratio",
"Revolving Credit Commitment", "Revolving Credit Commitment Termination
Date" and "Term Loan Commitment" to read,
respectively, as follows:
"Applicable Margin" means for any Eurodollar Loan or any
Alternate Base Rate Loan (as the case may be), from and after the
effective date of the Fourth Amendment until the date upon which
Borrower shall deliver to the Agent and the Banks the Parent's
consolidated financial statements for the fiscal year ended December
31, 1997, together with a duly completed compliance certificate
pursuant to Section 6.1(b), .50% per annum, and on any date
thereafter, the percentage determined from the grid set forth below
for the ratio of Consolidated Adjusted Debt to Consolidated EBITDAR
as of the most recently ended fiscal quarter of the Parent, as
determined from the financial statements most recently delivered
pursuant to Section 6.1(a) or (b). The ratio shall be calculated at
the end of such quarter and for the four fiscal quarters ended on
the last day of such fiscal quarter:
------------------------------------------------------
LIBOR and
Alternate Base
Adjusted Debt/EBITDAR Rate
Applicable Margin
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 2.5:1 .75%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 2.0:1 but
less than 2.5:1 .525%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 1.5:1 but
less than 2.0:1 .425%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 1.0:1 but
less than 1.5:1 .375%
------------------------------------------------------
------------------------------------------------------
Less than 1.0:1 .325%
------------------------------------------------------
Each adjustment in the Applicable Margin shall take effect
immediately upon receipt by the Agent of the financial statements
referred to above and shall be effective prospectively.
Notwithstanding the foregoing, so long as a Default shall have
occurred and be continuing, the Applicable Margin shall be the
highest rate specified above, plus 1% per annum.
"Applicable Percentage" means, from and after the effective
date of the Fourth Amendment until the date upon which Borrower
shall deliver to the Agent and the Lenders the Parent's consolidated
financial statements for the fiscal year ended December 31, 1997,
together with a duly completed compliance certificate pursuant to
Section 6.1(b), .50% per annum, and on any date thereafter, the per
annum percentage determined from the grid set forth below for the
ratio of Consolidated Adjusted Debt to Consolidated EBITDAR as of
the most recently ended fiscal quarter of the Parent, as determined
from the financial statements most recently delivered pursuant to
Section 6.1(a) or (b). The ratio shall be calculated at the end of
such quarter and for the four fiscal quarters ended on the last day
of such fiscal quarter:
------------------------------------------------------
Adjusted Debt/EBITDAR Applicable Percentage
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 2.5:1 .75%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 2.0:1 but
less than 2.5:1 .525%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 1.5:1 but
less than 2.0:1 .425%
------------------------------------------------------
------------------------------------------------------
Greater than or equal to 1.0:1 but
less than 1.5:1 .375%
------------------------------------------------------
------------------------------------------------------
Less than 1.0:1 .325%
------------------------------------------------------
Each adjustment in the Applicable Percentage shall take effect
immediately upon receipt by the Agent of the financial statements
referred to above, and shall be effective prospectively.
Notwithstanding the foregoing, so long as a Default shall have
occurred and be continuing, the Applicable Percentage shall be the
highest rate specified above, plus 1% per annum.
"Fixed Charge Coverage Ratio" means the ratio of (i)
Consolidated EBITDAR to (ii) the sum of (A) Consolidated Interest
Charges, plus (B) Consolidated Lease Payments, plus (C) Consolidated
Debt Amortization, plus (D) prior to the Term Loan Conversion Date,
25% of then outstanding Revolving Loans and Letter of Credit
Obligations, plus (E) the amount of then outstanding Guaranty
obligations (to the extent not included in (C) or (D) above), in
each case ((i) and (ii)) calculated for the four fiscal quarters
ending on the last day of any fiscal quarter; provided, that, for
purposes of calculating the Fixed Charge Coverage Ratio, there shall
be included in Consolidated Interest Charges, Consolidated Lease
Payments and Consolidated Debt Amortization for the applicable
period the interest charges (as calculated on a pro forma basis
using the effective rate of interest paid by the Borrower on the
Obligations), lease payments (other than Capital Leases) and debt
amortization, respectively, of any entity the capital stock, assets,
business or other ownership interests of which were acquired by the
Parent or any Consolidated Subsidiary during such period.
"Revolving Credit Commitment" means the commitment of each
Bank to make Revolving Loans pursuant to Section 1.1(a)(i) in the
amount set forth opposite such Bank's name on the signature pages of
the Fourth Amendment, as such amount may be increased from time to
time pursuant to Section 1.1(e) or reduced from time to time
pursuant to Section 1.7 or 7.2. Revolving Credit Commitments means
the sum of the Revolving Credit Commitments of all the Banks.
"Revolving Credit Commitment Termination Date" means the
earlier of (i) the date upon which the Revolving Credit Commitments
reduce to zero pursuant to Section 1.7 or Section 7.2 and (ii)
November 30, 1999, or such later date as shall be designated by the
Banks pursuant to Section 1.1(d).
"Term Loan Commitment" means, for any Bank, its Proportionate
Share of the lesser of $100,000,000 (as such amount may be increased
pursuant to Section 1.1(e)) and the aggregate amount of Revolving
Loans outstanding on the Term Loan Conversion Date, as such amount
may be reduced from time to time pursuant to Section 1.7 or Section
7.2.
(b) by modifying clause (vi) of the definition of the term
"Consolidated Net Income" to read as follows:
"(vi) any portion of the net earnings of any Subsidiary of any
other business entity in which the Parent or any Subsidiary has an
ownership interest, that for any reason (other than the provisions
of this Agreement, the other Loan Documents, or any other instrument
or agreement evidencing other Permitted Debt) is unable to be
dividended to the Parent or any other Subsidiary;"
(c) by adding thereto the following new definitions:
"Applicable Commitment Fee Percentage" means, from and after
the effective date of the Fourth Amendment until the date upon which
Borrower shall deliver to the Agent and the Lenders the Parent's
consolidated financial statements for the fiscal year ended December
31, 1997, together with a duly completed compliance certificate
pursuant to Section 6.1(b), .225% per annum, and on any date
thereafter, the per annum percentage determined from the grid set
forth below for the ratio of Consolidated Adjusted Debt to
Consolidated EBITDAR as of the most recently ended fiscal quarter of
the Parent as determined from the financial statements most recently
delivered pursuant to Section 6.1(a) or (b). The ratio shall be
calculated at the end of such quarter and for the four fiscal
quarters ended on the last day of such fiscal quarter:
----------------------------------------------------
Commitment
Adjusted Debt/EBITDAR Fee
----------------------------------------------------
----------------------------------------------------
Greater than or equal to 2.5:1.0 .25%
----------------------------------------------------
----------------------------------------------------
Greater than or equal to 2.0:1.0 but
less than 2.5:1.0 .15%
----------------------------------------------------
----------------------------------------------------
Greater than or equal to 1.0:1.0 but
less than 2.0:1.0 .125%
----------------------------------------------------
----------------------------------------------------
Less than 1.0:1.0 .10%
----------------------------------------------------
Each adjustment in the Applicable Commitment Fee Percentage shall
take effect immediately upon receipt by the Agent of the financial
statements referred to above, and shall be effective prospectively.
"Consolidated Adjusted Debt" means, at any time, the sum of
(i) Consolidated Debt at such time (excluding the present value of
the lease payments to be made under the Synthetic Lease to the
extent included therein) and (ii) the Asset Termination Value under
(and as defined in) the Synthetic Lease.
"Consolidated Depreciation" means, for any period, the
aggregate amount of all depreciation expense of the Parent and its
Consolidated Subsidiaries as shown on the consolidated financial
statements of the Parent.
"Consolidated EBITDAR" means, for any period, Consolidated Net
Income of the Parent and its Consolidated Subsidiaries for such
period, plus all amounts deducted therefrom for such period in
respect of (i) Consolidated Interest Charges (ii) Consolidated
Depreciation, (iii) Consolidated Amortization, (iv) Consolidated
Lease Payments and (v) Consolidated Taxes. In addition, Consolidated
EBITDAR for the applicable period shall include the net income plus
interest charges, depreciation, amortization, lease payments (other
than Capital Leases) and tax payments of any entity the capital
stock, assets, business or other ownership interests of which were
acquired by the Parent or any Consolidated Subsidiary during such
period.
"Fourth Amendment" means the Fourth Amendment to Credit
Agreement, dated as of December 31, 1997, among the Borrower, the
Agent and the Banks.
"Synthetic Lease" means the Participation Agreement, dated
March 29, 1996, among CTI, the Parent, Lease Plan North America,
Inc. and ABN AMRO Bank N.V., Atlanta Agency, as Participant and
Agent.
10. Amendments to Section 11.1. Subject to the terms and conditions of
this Amendment, Section 11.1(b) of the Credit Agreement is hereby amended to
provide that (i) notices to the Borrower shall be addressed as follows:
Covenant Transport, Inc.
400 Birmingham Highway
Chattanooga, Tennessee 37404
Attention: Joey Hogan
Chief Financial Officer
Telecopier No.: (423) 821-5442
Telephone No.: (423) 821-1212
with a copy to: Scudder Law Firm, P.C.
411 South 13th Street, Suite 200
Lincoln, Nebraska 68508
Attention: Mark A. Scudder, Esq.
Telecopier No.: (402) 435-4329
Telephone No.: (402) 435-3223
(ii) notices to the Agent shall be addressed as follows:
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Dave Thomas
Telecopier No.: (312) 904-2849
Telephone No.: (312) 904-2506
with a copy to: ABN AMRO Bank N.V.
Syndications Department
1325 Avenue of the Americas
9th Floor
New York, New York 10019
Attention: Linda Boardman
Telecopier No.: (212) 314-1709 or 1710
Telephone No.: (212) 314-1724
11. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Agent and the Banks that (a) this Amendment has
been duly authorized, executed and delivered by each of the Borrowers, (b) no
Default or Event of Default has occurred and is continuing as of this date, and
(c) all of the representations and warranties made by the Borrower in the Credit
Agreement are true and correct in all material respects on and as of the date of
this Amendment (except to the extent that any such representations or warranties
expressly referred to a specific prior date). Any breach by the Borrowers of the
representations and warranties contained in this Section 11 shall be an Event of
Default for all purposes of the Credit Agreement.
12. Ratification. Each of the Borrowers hereby ratifies and reaffirms each
and every term, covenant and condition set forth in the Credit Agreement and all
other documents delivered by such Borrower in connection therewith (including
without limitation the other Loan Documents to which such Borrower is a party),
effective as of the date hereof.
13. Estoppel. To induce the Agent and the Banks to enter into this
Amendment, each of the Borrowers hereby acknowledges and agrees that, as of the
date hereof, there exists no right of offset, defense or counterclaim in favor
of such Borrowers as against the Agent, any Bank or any Letter of Credit Bank
with respect to the obligations of the Borrowers to any of such parties under
the Credit Agreement or the other Loan Documents, either with or without giving
effect to this Amendment.
14. Acquisition of New Subsidiary. Subject to the terms and conditions of
this Amendment, the Agent and the Banks hereby consent to the acquisition of Bud
Meyer Truck Lines, Inc. as a new Subsidiary, and hereby confirm that such
acquisition did not constitute an Event of Default and further confirm that the
delivery of the agreements in connection with Amendment satisfy the obligations
of such new Subsidiary to deliver the additional Security Documents required
under Section 5.18 and 5.21. The foregoing shall apply only to the matter stated
and shall not constitute a waiver by the Agent or the Banks of any other or
future Default or Event of Default. Schedule 4.1 of the Credit Agreement is
hereby amended by adding thereto the name of Bud Meyer Truck Lines, Inc.
15. Conditions to Effectiveness. This Amendment shall become
effective, upon the Effective Date, subject to the satisfaction of the
following conditions on or prior to such date:
(a) the receipt by the Agent of this Amendment, duly
executed, completed and delivered by the Agent, the Banks and the
Borrowers, and consented to by the Parent, Intellectual Property Co.
and Covenant Acquisition Co.;
(b) the receipt by the Agent and the Banks of replacement Revolving
Notes evidencing Base Rate Loans, Alternate Base Rate Loans and Eurodollar
Loans, duly executed by the Borrowers and payable to the order of each
Bank;
(c) the receipt by the Agent of such additional Security Documents
or modifications of the existing Security Documents as may be requested by
the Agent, duly executed by the Parent and/or each Borrower and/or any
other Subsidiary which is a party thereto, and the Collateral Agent, in
each case in form and substance satisfactory to the Agent;
(d) the receipt by the Agent of such modifications of the
Intercreditor Agreement as may be requested by the Agent, duly executed by
the Collateral Agent and the Senior Noteholders, and acknowledged by the
Borrowers, the Parent and each other Subsidiary, in form and substance
satisfactory to the Agent;
(e) the receipt by the Agent of a Joinder Agreement joining
Bud Meyer Truck Lines, Inc. as a party to and guarantor under the
Guaranty Agreement, dated as of March 31, 1997, previously executed
by Intellectual Property Co. and Covenant Acquisition Co. (formerly
C&F Acquisition Co.) in favor of the Agent and the Banks, and such
Security Documents as may be requested by the Agent, duly executed by
Bud Meyer Truck Lines, Inc. and in form and substance satisfactory to
the Agent;
(f) the receipt by the Agent of a certificate of the Secretary or an
Assistant Secretary of the Parent, each Borrower, Intellectual Property
Co., Covenant Acquisition Co. and Bud Meyer Truck Lines, Inc. in form and
substance satisfactory to the Agent, with respect to the officers of such
Persons authorized to deliver this Amendment, the replacement Revolving
Notes and the other supplemental Loan Documents contemplated hereby, to
which shall be attached copies of the resolutions and bylaws referred to
in such certificate;
(g) the receipt by the Agent of a certificate of good standing with
respect to the Parent, each Borrower, Intellectual Property Co., Covenant
Acquisition Co. and Bud Meyer Truck Lines, Inc., issued as of a recent
date by the Secretary of State of its jurisdiction of incorporation;
(h) the receipt by the Agent of a certificate as to the solvency of
the Parent and its Subsidiaries, duly executed by the chief financial
officer of the Parent and in form and substance satisfactory to the Agent;
(i) the receipt by the Agent of an opinion of counsel to the
Parent, the Borrowers, Intellectual Property Co., Covenant
Acquisition Co. and Bud Meyer Truck Lines, Inc. as to such matters as
may be requested by the Agent or the Required Banks, in form and
substance satisfactory to the Agent and the Required Banks;
(j) the receipt by the Agent of such other documents,
certificates, instruments and opinions as the Agent may reasonably
request; and
(k) the receipt by the Agent of all fees and expenses payable to the
Agent and the Banks in connection with the Credit Agreement and this
Amendment including without limitation, the reasonable legal fees and
other reasonable out of pocket expenses of the Agent and each Bank
incurred in connection with this Amendment.
16. Reimbursement of Expenses. Each of the Borrowers hereby jointly and
severally agrees that it shall reimburse the Agent on demand for all costs and
expenses (including without limitation attorney's fees) incurred by such parties
in connection with the negotiation, documentation and consummation of this
Amendment and the other documents executed in connection herewith and therewith
and the transactions contemplated hereby and thereby.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA FOR CONTRACTS
TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
18. Severability of Provisions. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To the extent
permitted by Applicable Law, each of the Borrowers hereby waives any provision
of law that renders any provision hereof prohibited or unenforceable in any
respect.
19. Counterparts. This Amendment may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns.
20. Entire Agreement. The Credit Agreement as amended by this Agreement
embodies the entire agreement between the parties hereto relating to the subject
matter hereof and supersedes all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COVENANT TRANSPORT, INC., a Tennessee
corporation, as a Borrower
By:/s/ Joey B. Hogan
Name: Joey B. Hogan
Title: CFO/Treasurer
COVENANT LEASING, INC., a Nevada
corporation, as a Borrower
By: /s/ Joey B. Hogan
Name: Joey B. Hogan
Title: CFO/Treasurer
ABN AMRO BANK N.V., acting through
its Atlanta Agency, as Agent
By: /s/ Nick T. Weaver
Name: Nick T. Weaver
Title: Vice President
By: /s/ Linda K. Davis
Name: Linda K. Davis
Title: Vice President
ABN AMRO BANK N.V., acting through
its Atlanta Agency, as a Bank
By: /s/ Nick T. Weaver
Name: Nick T. Weaver
Title: Vice President
By: /s/ Linda K. Davis
Name: Linda K. Davis
Title: Vice President
Commitments: Amount: Percentage:
Revolving $30,000,000 .30000000
Term $30,000,000 .30000000
Base Rate Lending Office: ABN AMRO Bank N.V., Atlanta Agency
1325 Avenue of the Americas
9th Floor
New York, New York 10019
Attention: Linda Boardman
Eurodollar Lending Office: ABN AMRO Bank N.V. Atlanta Agency
1325 Avenue of the Americas
9th Floor
New York, New York 10019
Attention: Linda Boardman
Address for purposes of
Section 11.1: ABN AMRO Bank N.V.
135 South LaSalle
Chicago, Illinois 60603
Attention: Dave Thomas
Telecopier No.: (312) 904-2849
Telephone No.: (312) 904-2506
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Gregory J. Sjullie
Name: Gregory J. Sjullie
Title: Vice President
Commitments: Amount: Percentage:
Revolving $26,000,000 .26000000
Term $26,000,000 .26000000
Base Rate Lending Office: The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Greg Sjullie
Eurodollar Lending Office: The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Greg Sjullie
Address for purposes of Section
11.1: The First National Bank of Chicago
One First National Plaza
Building 1, 10th Floor, Suite #0374
Chicago, Illinois 60670
Attention: Greg Sjullie
Telecopier No.: (312) 732-3055
Telephone No.: (312) 732-8872
NATIONSBANK, N.A.
By: /s/ Greg McCrery
Name: Greg McCrery
Title: Vice President
Commitments: Amount: Percentage:
Revolving $26,000,000 .26000000
Term $26,000,000 .26000000
Base Rate Lending Office: NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Greg McCrery
Eurodollar Lending Office: NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Greg McCrery
Address for purposes of Section
11.1: NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Greg McCrery
Telecopier No.: (404) 607-6466
Telephone No.: (404) 607-5540
FIRST AMERICAN NATIONAL BANK
By: /s/ Mary E. Buckner
Name: Mary E. Buckner
Title: Vice President
Commitments: Amount: Percentage:
Revolving $18,000,000 .18000000
Term $18,000,000 .18000000
Base Rate Lending Office: First American National Bank
1 Union Square, Suite 100
Chattanooga, Tennessee 37402
Attention: Mary E. Buckner
Eurodollar Lending Office: First American National Bank
1 Union Square, Suite 100
Chattanooga, Tennessee 37402
Attention: Mary E. Buckner
Address for purposes of Section
11.1: First American National Bank
1 Union Square, Suite 100
Chattanooga, Tennessee 37402
Attention: Mary E. Buckner
Telecopier No.: (423) 755-6014
Telephone No.: (423) 755-6022
- ------------------------------------------------------------------------------
CONSENT OF GUARANTOR
- ------------------------------------------------------------------------------
The undersigned COVENANT TRANSPORT, INC., a Nevada corporation, as
guarantor (the "Guarantor") under that certain Guaranty Agreement (hereinafter
called the "Guaranty"), dated as of January 17, 1995, executed by the Guarantor
pursuant to the Credit Agreement (as amended, the "Credit Agreement"), dated as
of January 17, 1995, among Covenant Transport, Inc., a Tennessee corporation,
and Covenant Leasing, Inc., a Nevada corporation (collectively, the
"Borrowers"), the Banks signatories thereto (the "Banks"), the Banks serving as
Letter of Credit Banks thereunder, and ABN AMRO Bank N.V., acting through its
Atlanta Agency, as Agent (all of the foregoing parties being herein referred to
collectively as the "Guaranteed Parties"), with respect to the indebtedness and
obligations of the Borrowers arising under the Credit Agreement, hereby consents
to and approves of the execution and delivery by the Borrowers of that certain
Fourth Amendment to Credit Agreement (the "Amendment"), dated as of the date
hereof, executed by and among the Borrowers and the Guaranteed Parties, and the
transactions contemplated thereby, and further consents to and approves of the
execution and delivery by the Borrowers of all other documents and instruments
executed or to be executed by the Borrowers in connection therewith, including,
without limitation, the replacement Notes.
The Guarantor acknowledges and agrees that the execution and delivery of
the Amendment and the replacement Notes shall not diminish, impair, alter,
discharge or otherwise affect in any manner whatsoever the duties, obligations
and liabilities of the Guarantor under the Guaranty including, without
limitation, the obligation of the Guarantor for the payment of the "Obligations"
(as that term is defined in the Guaranty and the Credit Agreement).
The Guarantor hereby ratifies, confirms and approves the Guaranty and all
of the terms and provisions thereof, and agrees that the Guaranty constitutes
the valid and binding obligation of the Guarantor, enforceable by the Guaranteed
Parties in accordance with its terms.
IN WITNESS WHEREOF, the Guarantor has executed this consent, as of the
31st day of December, 1997.
GUARANTOR:
COVENANT TRANSPORT, INC., a Nevada
corporation
By: /s/ Joey B. Hogan
Name: Joey B. Hogan
Title: CFO/Treasurer
- ------------------------------------------------------------------------------
CONSENT OF GUARANTOR
- ------------------------------------------------------------------------------
The undersigned INTELLECTUAL PROPERTY CO., a Nevada corporation, as
guarantor (the "Guarantor") under that certain Guaranty Agreement (hereinafter
called the "Guaranty"), dated as of March 31, 1997, executed by the Guarantor
and C&F Acquisition Co. pursuant to the Credit Agreement (as amended, the
"Credit Agreement"), dated as of January 17, 1995, among Covenant Transport,
Inc., a Tennessee corporation, and Covenant Leasing, Inc., a Nevada corporation
(collectively, the "Borrowers"), the Banks signatories thereto (the "Banks"),
the Banks serving as Letter of Credit Banks thereunder, and ABN AMRO Bank N.V.,
acting through its Atlanta Agency, as Agent (all of the foregoing parties being
herein referred to collectively as the "Guaranteed Parties"), with respect to
the indebtedness and obligations of the Borrowers arising under the Credit
Agreement, hereby consents to and approves of the execution and delivery by the
Borrowers of that certain Fourth Amendment to Credit Agreement (the
"Amendment"), dated as of the date hereof, executed by and among the Borrowers
and the Guaranteed Parties, and the transactions contemplated thereby, and
further consents to and approves of the execution and delivery by the Borrowers
of all other documents and instruments executed or to be executed by the
Borrowers in connection therewith, including, without limitation, the
replacement Notes.
The Guarantor acknowledges and agrees that the execution and delivery of
the Amendment and the replacement Notes shall not diminish, impair, alter,
discharge or otherwise affect in any manner whatsoever the duties, obligations
and liabilities of the Guarantor under the Guaranty including, without
limitation, the obligation of the Guarantor for the payment of the "Obligations"
(as that term is defined in the Guaranty and the Credit Agreement).
The Guarantor hereby ratifies, confirms and approves the Guaranty and all
of the terms and provisions thereof, and agrees that the Guaranty constitutes
the valid and binding obligation of the Guarantor, enforceable by the Guaranteed
Parties in accordance with its terms.
IN WITNESS WHEREOF, the Guarantor has executed this consent, as of the
31st day of December, 1997.
GUARANTOR:
INTELLECTUAL PROPERTY CO., a Nevada
corporation
By: /s/ Joey B. Hogan
Name: Joey B. Hogan
Title: CFO/Treasurer
- ------------------------------------------------------------------------------
CONSENT OF GUARANTOR
- ------------------------------------------------------------------------------
The undersigned COVENANT ACQUISITION CO., a Nevada corporation formerly
known as C&F Acquisition Co., as guarantor (the "Guarantor") under that certain
Guaranty Agreement (hereinafter called the "Guaranty"), dated as of March 31,
1997, executed by the Guarantor and Intellectual Property Co. pursuant to the
Credit Agreement (as amended, the "Credit Agreement"), dated as of January 17,
1995, among Covenant Transport, Inc., a Tennessee corporation, and Covenant
Leasing, Inc., a Nevada corporation (collectively, the "Borrowers"), the Banks
signatories thereto (the "Banks"), the Banks serving as Letter of Credit Banks
thereunder, and ABN AMRO Bank N.V., acting through its Atlanta Agency, as Agent
(all of the foregoing parties being herein referred to collectively as the
"Guaranteed Parties"), with respect to the indebtedness and obligations of the
Borrowers arising under the Credit Agreement, hereby consents to and approves of
the execution and delivery by the Borrowers of that certain Fourth Amendment to
Credit Agreement (the "Amendment"), dated as of the date hereof, executed by and
among the Borrowers and the Guaranteed Parties, and the transactions
contemplated thereby, and further consents to and approves of the execution and
delivery by the Borrowers of all other documents and instruments executed or to
be executed by the Borrowers in connection therewith, including, without
limitation, the replacement Notes.
The Guarantor acknowledges and agrees that the execution and delivery of
the Amendment and the replacement Notes shall not diminish, impair, alter,
discharge or otherwise affect in any manner whatsoever the duties, obligations
and liabilities of the Guarantor under the Guaranty including, without
limitation, the obligation of the Guarantor for the payment of the "Obligations"
(as that term is defined in the Guaranty and the Credit Agreement).
The Guarantor hereby ratifies, confirms and approves the Guaranty and all
of the terms and provisions thereof, and agrees that the Guaranty constitutes
the valid and binding obligation of the Guarantor, enforceable by the Guaranteed
Parties in accordance with its terms.
IN WITNESS WHEREOF, the Guarantor has executed this consent, as of the
31st day of December, 1997.
GUARANTOR:
COVENANT ACQUISITION CO., a Nevada
corporation formerly known as C&F
Acquisition Co.
By: /s/ Joey B. Hogan
Name: Joey B. Hogan
Title: CFO/Treasurer