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EXECUTION COPY
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CONSOLIDATING
AMENDMENT NO. 1
TO LOAN AGREEMENT
THIS CONSOLIDATING AMENDMENT NO. 1 TO LOAN AGREEMENT, executed on August 7,
2003 to be effective as of May 2, 2003 (this "Amendment"), is entered into by
and among CVTI RECEIVABLES CORP., as borrower ("CVTI"), COVENANT TRANSPORT,
INC., as master servicer ("Covenant"), THREE PILLARS FUNDING CORPORATION, as
lender ("Three Pillars") and SUNTRUST CAPITAL MARKETS, INC. (formerly SunTrust
Equitable Securities Corporation), as administrator ("Administrator"). This
Amendment consolidates, amends, and restates in full each of Amendment No. 1 to
Loan Agreement, dated December 11, 2001, Amendment No. 3 to Loan Agreement,
dated December 10, 2002, and Amendment No. 4 to Loan Agreement, dated May 2,
2003 (collectively the "Prior Amendments"). Capitalized terms used and not
otherwise defined herein are used as defined in the Agreement (as defined below
and amended hereby).
WHEREAS, the parties hereto have entered into that certain Loan Agreement,
dated as of December 12, 2000 (the "Agreement");
WHEREAS, the parties previously executed the Prior Amendments to the
Agreement to amend certain provisions of the Agreement;
WHEREAS, the parties now wish to consolidate, amend, and restate in full
each of the Prior Amendments;
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 Agreement.
The Agreement is hereby amended as follows:
(a) The definition of "Scheduled Commitment Termination Date" in Section
1.1 of the Agreement was amended and restated in Amendment No. 1 to Loan
Agreement to be extended to December 10, 2002, and is hereby amended and
restated, effective December 10, 2002, to read in its entirety as follows:
Scheduled Commitment Termination Date: December 9, 2003.
(b) The definition of "Stated Maturity Date" in Section 1.1 of the
Agreement is hereby amended and restated, effective December 10, 2002, to read
in its entirety as follows:
Stated Maturity Date: December 9, 2003; provided, however, that such date
may be accelerated pursuant to Section 10.3.
(c) Schedule V to the Agreement is hereby replaced in its entirety,
effective December 10, 2002, with Schedule V hereto.
(d) Section 9.1(e)(v) of the Agreement is hereby amended and restated in
its entirety, effective May 2, 2003, to read as follows:
(v) Collateral Review. As soon as possible, and in any event within sixty
(60) days after the end of each calendar year, a report of the
independent certified public accountants of Covenant Nevada (each such
report, a "Collateral Review") which satisfies the requirements set
forth on Schedule V; provided, however, upon the request of the
Administrator, a Collateral Review shall be delivered on a semi-annual
basis.
(e) Section II(d) of Schedule V of the Agreement is hereby amended and
restated in its entirety, effective May 2, 2003, to read as follows:
(d) the reports shall be delivered within sixty (60) days after the end of
each calendar year following the Closing Date and at such other times
as the Administrator may request pursuant to Section 9.1(e)(v) of the
Agreement;
SECTION 2. Effect of Amendment. Except as modified and expressly amended by
this Amendment, the 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. On and after the effective date hereof, all references in the
Agreement to "this Agreement," "hereto," "hereof," "hereunder," or words of like
import refer to the 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 Agreement and their successors and
permitted assigns. This Amendment shall be effective as of May 2, 2003, or such
earlier dates as provided for herein, upon the execution and delivery of a
counterpart hereto by each of the parties hereto (such time being the "Effective
Time"). Each of the Prior Amendments shall have no force or effect from and
after the Effective Time.
SECTION 4. Governing Law. This Amendment will be governed by and construed
in accordance with the laws of the State of New York.
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. In case any provision in or obligation under this Amendment shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the
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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]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
THREE PILLARS: THREE PILLARS FUNDING CORPORATION,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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THE BORROWER: CVTI RECEIVABLES CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer and Chief Financial Officer
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THE ADMINISTRATOR: SUNTRUST CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Managing Director
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THE MASTER SERVICER: COVENANT TRANSPORT, INC.,
a Nevada holding corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Executive Vice President and Chief
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Financial Officer
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Schedule V
Collateral Review Requirements
I. Initial Report of Independent Accountants
(a) the report shall be titled the "Initial Report of Independent
Accountants on Agreed Upon Procedures";
(b) the report shall be addressed to Covenant Transport, Inc., as Master
Servicer and to SunTrust Equitable Securities Corporation as
Administrator:
▇▇▇ ▇▇▇▇▇▇▇
SunTrust Equitable Securities Corp.
Mail Code 3950
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(c) the agreed upon procedures shall be performed by
PricewaterhouseCoopers LLP as engaged by the Master Servicer;
(d) the report shall be delivered on April 15, 2001; and
(e) the agreed upon procedures shall entail the selection of a
non-systematic sample of 100 invoices from the receivable schedule
delivered by Borrower pursuant to the initial funding performance of
the following:
(i) agree invoice information including: customer name and
receivables balance to information on the report generated by the
receivable servicing system;
(ii) determine that credit terms are indicated on the invoice and do
not exceed 30 days; and
(iii)determine that the Originators' computer records have been
marked or stamped indicating that the Receivable has been sold to
CVTI Receivables Corp.
II. Reports of Independent Accountants
(a) the report shall be titled "Report of Independent Accountants on
Agreed Upon Procedures";
(b) the report shall be addressed as detailed in item I above;
(c) the agreed upon procedures shall be performed by
PricewaterhouseCoopers LLP;
(d) the reports shall be delivered within 60 days after each semi-annual
period following this transaction's Closing Date; and
(e) the agreed upon procedures shall consist of the following:
(i) agree the data on lines 1 through 6 and 8 through 13 from three (3)
non- systematically selected Monthly Reports as shown in Exhibit C for the
most recent semi-annual period to the information contained in system
reports and accounting records used in the compilation of those Monthly
Reports;
(ii) request personnel responsible for the credit and/or finance
function at Covenant Transport, Inc. to (a) identify whether or
not any customers with balances included as Receivables are in
bankruptcy; and (b) provide a list of the names of such
customers. For any such identified customers, compare the balance
of such Receivables contained in the system reports used in the
compilation of those Monthly Reports with amounts contained in
lines 16 and 17 of the Monthly Reports in item (i) above and
report any differences;
(iii)verify the mathematical accuracy of the Accounts Receivable
information and Aging Report in the Monthly Reports in item (i)
above;
(iv) non-systematically select a sample of 100 invoices from the
receivable schedule delivered by Borrower pursuant to the
subsequent fundings during the most recent semi-annual period and
perform the following:
(a) agree invoice information including: customer name and receivables
balance to information on a report generated by the receivables servicing
system and agree that except for those invoices processed through
Electronic Data Interchange (EDI) terms are as indicated on the invoice and
do not exceed 30 days;
(b) determine that the Originators' computer records have been marked
or stamped to indicate that the Receivable has been sold to CVTI
Receivables Corp.;
(c) for invoices for which payments have been received verify that the
Collection was sent by wire transfer to a Collection Account or by
check to a Lock-Box and deposited into a Collection Account.
