AMENDMENT NO. 11 TO LOAN AGREEMENT (CVTI/Covenant Transport)
Exhibit
10.26
AMENDMENT
NO. 11 TO
(CVTI/Covenant
Transport)
THIS
AMENDMENT NO. 11 TO LOAN AGREEMENT, dated as of October 20, 2006 (the
“Amendment”),
is
entered into by and among THREE PILLARS FUNDING LLC (formerly known as THREE
PILLARS FUNDING CORPORATION), (“Three
Pillars”),
SUNTRUST CAPITAL MARKETS, INC. (formerly SunTrust Equitable Securities
Corporation), as administrator (the “Administrator”),
CVTI
RECEIVABLES CORP. (“CVTI”),
and
COVENANT TRANSPORT, INC. (“Covenant”).
Capitalized terms used and not otherwise defined herein are used as defined
in
the Loan Agreement, dated as of December 12, 2000 among Three Pillars, the
Administrator, CVTI and Covenant (as amended to date, the “Loan
Agreement”).
WHEREAS,
the parties hereto desire to further amend the Loan Agreement in certain
respects as provided herein;
NOW
THEREFORE, in consideration of the premises and the other mutual covenants
contained herein, the parties hereto agree as follows:
SECTION
1. Amendments
to the Loan Agreement.
(a) The
definition of
“Originators” is hereby amended in its entirety to read as follows:
“Originators:
Covenant Tennessee , Southern Refrigerated, Covenant Transport Solutions, Inc.
and Star Transportation, Inc., in their respective capacities as originators
under the Receivables Purchase Agreement.”
(b) The
definition of “Originator Note” is hereby amended in its entirety to read as
follows:
“Originator
Note:
Collectively, (a) the subordinated promissory note dated as of the initial
Purchase Date issued by Borrower to Covenant Tennessee pursuant to the
Receivables Purchase Agreement, (b) the subordinated promissory note dated
as of
the initial Purchase Date issued by Borrower to Southern Refrigerated pursuant
to the Receivables Purchase Agreement, (c) the subordinated promissory note
dated as of October 18, 2006 issued by Borrower to Covenant Transport Solutions,
Inc., (d) the subordinated promissory note dated as of October 18, 2006 issued
by Borrower to Star Transportation, Inc. pursuant to the Receivables Purchase
Agreement and (e) any other promissory notes subsequently issued by Borrower
to
Covenant Tennessee, Southern Refrigerated, Covenant Transport Solutions, Inc.
and/or Star Transportation, Inc. pursuant to the Receivables Purchase Agreement,
which promissory notes in each case shall be in the form of Exhibit
G hereto.”
(c) Section
2.1 of the Agreement is hereby replaced with the following:
“On
the
terms and subject to the conditions set forth in this Agreement, Lender agrees
to make loans to Borrower on a revolving basis from time to time (the
“Lender’s
Commitment”)
before
the Commitment Termination Date in such amounts as may be from time to time
requested by Borrower pursuant to Section
2.2;
provided,
however,
that
the aggregate principal amount of all Loans from time to time outstanding
hereunder shall not exceed the lesser of (a) $70,000,000 (the “Facility
Limit”)
and
(b) the Borrowing Base. Within the limits of Lender’s Commitment, Borrower may
borrow, prepay and reborrow under this Section
2.1.”
SECTION
2. Effect
of Amendment.
Except
as
modified and expressly amended by this Amendment, the Loan Agreement is in
all
respects ratified and confirmed, and all the terms, provisions and conditions
thereof shall be and remain in full force and effect. This Amendment shall
be
effective on the date (the “Amendment
Effective Date”)
on or
after the Effective Date, as defined in the Amendment and Joinder Agreement,
dated as of the date hereof, by and among the Purchaser, Covenant
Tennessee , Southern Refrigerated, Covenant Transport Solutions, Inc. and Star
Transportation, Inc. on
which
each of the parties hereto delivers to the Administrator a fully executed
original of this Amendment. On and after the Amendment Effective Date, all
references in the Loan Agreement to “this Agreement,” “hereto,” “hereof,”
“hereunder” or words of like import refer to the Loan Agreement as amended by
this Amendment.
SECTION
3. Binding
Effect.
This
Amendment shall be binding upon and inure to the benefit of the parties to
the
Loan Agreement and their successors and permitted assigns.
SECTION
4. Governing
Law.
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION
5. Execution
in
Counterparts; Severability.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which taken together shall constitute one and
the
same agreement. Delivery of an executed counterpart of a signature page by
facsimile shall be effective as delivery of a manually executed counterpart
of
this Amendment. If any provision of, or obligation under, this Amendment shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
[remainder
of page intentionally left blank]
2
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duty authorized, as of the date first above
written.
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THREE
PILLARS:
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THREE
PILLARS FUNDING LLC
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇
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Title:
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Vice
President
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THE
ADMINISTRATOR:
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SUNTRUST
CAPITAL MARKETS, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇
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Title:
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Managing
Director
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[signatures
continued on next page]
(Signature
Page to Amendment No. 11 to Loan Agreement (CVTI/Covenant
Transport))
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THE
MASTER SERVICER:
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COVENANT
TRANSPORT, INC.
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇
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Title:
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CFO
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THE
BORROWER:
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CVTI
RECEIVABLES CORP.
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇
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Title:
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Treasurer
& CFO
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[end
of
signatures]
(Signature
Page to Amendment No. 11 to Loan Agreement (CVTI/Covenant
Transport))