EXHIBIT 10.8(b)
EXECUTION COPY
FIRST AMENDMENT
TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of April 29, 2003
(this "Amendment"), is entered into by and among CENTRAL RECEIVABLES, INC., as
borrower ("Borrower"), CENTRAL FREIGHT LINES, INC., as servicer ("Servicer"),
THREE PILLARS FUNDING CORPORATION, as lender and SUNTRUST CAPITAL MARKETS, INC.,
as administrator ("Administrator"). 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 April 30, 2002 (the "Agreement");
WHEREAS, the parties hereto wish to amend the Agreement as hereinafter
set forth;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS. The Agreement is hereby amended as follows:
(a) The definition of "Accounts Receivable Turnover Ratio" in
Section 1.1 of the Agreement is hereby amended and restated in its entirety to
read as follows:
Accounts Receivable Turnover Ratio: For any Due Period, the
ratio computed as of the last day of such Due Period by
dividing (i) the aggregate amount of Sales during the most
recent twelve (12) Due Periods by (ii) the rolling twelve (12)
Due Period average of the aggregate Unpaid Balance of
Receivables.
(b) The definition of "Concentration Limit" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
Concentration Limit: (i) For any Obligator that is not a
Special Obligator and (A) whose short term unsecured debt
rating is (1) greater than or equal to both A-1 by S&P and P-1
by ▇▇▇▇▇'▇, 8% of the Aggregate Unpaid Balance or (2) less
than both A-1 by S&P and P-1 by ▇▇▇▇▇'▇ and greater than or
equal to both A-3 by S&P and P-3 by ▇▇▇▇▇'▇, 5% of the
Aggregate Unpaid Balance or (B) in the absence of short term
unsecured debt ratings by both Rating Agencies, whose long
term unsecured debt rating is greater than or equal to both
BBB- by S&P and Baa3 by ▇▇▇▇▇'▇, 5% of the Aggregate Unpaid
Balance; and (ii) for any other Obligor that is not a Special
Obligor, 2% of the Aggregate Unpaid Balance. The Concentration
Limit for the Special Obligator shall be 10% of the Aggregate
Unpaid Balance, or if the long term unsecured debt rating of
the Special Obligor shall be less than or equal to BBB- by S&P
and Baa3 by ▇▇▇▇▇'▇, 5% of the Aggregate Unpaid Balance.
(c) The definition of "Dilution Spike Rate" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
Dilution Spike Rate: With respect to any Due Period, the
highest rolling two (2) month average Dilution Ratio over the
most recent twelve (12) Due Periods.
(d) The definition of "Expected Dilution Ratio" in Section 1.1 of
the Agreement is hereby amended and restated in its entirety to read as follows:
Expected Dilution Ratio: With respect to any Due Period, the
rolling twelve (12) Due Period average Dilution Ratio for the
most recently ended twelve (12) Due Periods.
(e) The definition of "Fiscal Period" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
Fiscal Period: Each fiscal period of Central Nevada and its
Subsidiaries ending on the date specified in Schedule VII
hereto, as such schedule may be updated from time to time in
accordance with Section 9.1(e)(vi); provided, however that
there shall be twelve (12) Fiscal Periods in each Fiscal Year.
(f) The definition of "Loss Ratio" in Section 1.1 of the Agreement
is hereby amended and restated in its entirety to read as follows:
Loss Ratio: With respect to any Due Period, the highest
rolling three (3) Due Period average Default Ratio over the
most recent twelve (12) Due Periods.
(g) The definition of "Scheduled Termination Date" in Section 1.1
of the Agreement is hereby amended and restated in its entirety to read as
follows:
Scheduled Commitment Termination Date: April 27, 2005.
(h) The definition of "Servicing Reserve" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
Servicing Reserve: With respect to any Due Period, the product
of (i) the highest Days Sales Outstanding Ratio during the
most recent twelve (12) Due Periods, (ii) the Stress Factor,
(iii) 2.40% and (iv) 1/360.
(i) The definition of "Stated Maturity Date" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
Stated Maturity Date: April 27, 2005; provided, however, that
such date may be accelerated pursuant to Section 10.3.
(j) The definition of "Yield Reserve" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
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▇▇▇▇▇ ▇▇▇▇▇▇▇: With respect to any Due Period, the product of (i) the highest
Days Sales Outstanding Ratio during the most recent twelve (12) Due Periods,
(ii) the Stress Factor, (iii) the Prime Rate as in effect on the last day of
such Due Period and (iv) 1/360.
(k) Section 9.1(e)(ii) is hereby amended and restated in its
entirety to read as follows:
(ii) Reports. On or before the 22nd day of each calendar
month (each, a "Reporting Date"), Servicer shall prepare and
deliver to Administrator and Lender a report, substantially in
the form of Exhibit C or in such other form acceptable to
Administrator (a "Period Report"), as of the immediately
preceding Period End Date signed by an authorized officer of
Servicer. On or before the first Business Day of each week,
Servicer shall prepare and deliver to Administrator and Lender
a Borrowing Base Certificate, as of the last Business Day of
the immediately preceding week signed by an authorized officer
of Servicer.
(l) Section 11.7(e) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(e) so long as Central Texas is the subservicer pursuant
to Section 11.1, the Net Worth of Central Texas shall be less
than or equal to the sum of (i) $25,000,000 plus (ii) 50% of
Consolidated Net Income on a cumulative basis for the third,
sixth, ninth and twelfth Fiscal Periods, commencing after the
Closing Date, plus (iii) 100% of the net proceeds from any
equity offering of Central Nevada, calculated quarterly on the
last day of each fiscal quarter;
(m) Schedule VII is hereby replaced with Schedule VII hereto.
SECTION 2. REFERENCE TO AND EFFECT ON THE AGREEMENT AND THE RELATED
DOCUMENTS. Upon the effectiveness of this Amendment, (i) each of the Borrower
and the Servicer hereby reaffirms all representations and warranties made by it
in Article VIII of the Agreement (as amended hereby) and agrees that all such
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment, (ii) each of the Borrower and the Servicer
hereby represents and warrants that no Significant Event or Unmatured
Significant Event, shall have occurred and be continuing and (iii) each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import shall mean and be, and any references to the Agreement
in any other document, instrument or agreement executed and/or delivered in
connection with the Agreement shall mean and be, a reference to the Agreement as
amended hereby.
SECTION 3. EFFECT. Except as otherwise amended by this Amendment, the
Agreement shall continue in full force and effect and is hereby ratified and
confirmed.
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. SEVERABILITY. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of one or more provisions of this Amendment
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in one jurisdiction shall not have the effect of rendering such provision or
provisions unenforceable in any other jurisdiction.
SECTION 6. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
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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.
CENTRAL RECEIVABLES, INC.,
as Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: CFO
CENTRAL FREIGHT LINES, INC.,
as Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: CFO
[additional signatures to follow]
THREE PILLARS FUNDING CORPORATION,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
SUNTRUST CAPITAL MARKETS, INC.,
as Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
[end of signatures]
