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Exhibit 10.27
AMENDMENT
AND
JOINDER AGREEMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT AND JOINDER AGREEMENT TO
RECEIVABLES PURCHASE AGREEMENT, dated as of October 20, 2006 (this
" Amendment and Joinder Agreement
"), is by and among COVENANT TRANSPORT, INC.
(" Covenant Tennessee "),
SOUTHERN REFRIGERATED TRANSPORT, INC. (" Southern
Refrigerated " and, together with Covenant
Tennessee, the " Original Originators
" and each, an " Original
Originator "), CVTI RECEIVABLES CORP (the
" Purchaser "), COVENANT
TRANSPORT SOLUTIONS, INC. (" Transport
Solutions ") and STAR TRANSPORTATION, INC.
(" Star Transport " and,
together with Transport Solutions, the " New
Originators " and each, a "
New Originator ", and together with
the Original Originators, the " Originators
" and each, an " Originator
"). Capitalized terms not otherwise defined herein
shall have the meanings given to such terms in the Original
Agreement, as defined below.
WHEREAS, the Original Originators and the
Purchaser entered into that certain Receivables Purchase Agreement,
dated as of December 12, 2000, as amended, restated, supplemented
or otherwise modified to the date hereof (the "
Original Agreement " and, together
and as amended by this Amendment and Joinder Agreement, the
" Agreement ");
and
WHEREAS, the Original Originators and the
Purchaser desire to add the New Originators as Originators under
the Original Agreement;
WHEREAS, the Original Originators and the
Purchaser have requested the Lender and the Administrator to
consent to the addition of the New Originators as Originators under
the Original Agreement;
WHEREAS, the Lender and the Administrator have
agreed to consent to the addition of the New Originators as
Originators under the Original Agreement;
NOW THEREFORE, in consideration of the premises
and the other mutual covenants contained herein, the parties hereto
agree as follows:
Section 1.
Amendments .
(a) Section 1.1 of the Original Agreement is amended by adding the
following defined terms in alphabetical order:
Non-Owner Originator : Each of Covenant
Transport Solutions, Inc. and Star Transportation, Inc.
Originator Note Limit : On any day, the
lesser of (a) $1,860,000 and (b) 3% of the Facility Limit.
Owner Originator : Each of Covenant
Transport, Inc. and Southern Refrigerated Transport, Inc.
(b) Sections 2.1(a), (b) and (c) of the Original
Agreement are each replaced with the following:
(a) Each
Originator hereby sells, absolutely assigns, transfers and conveys
to the Purchaser on each Purchase Date, on the terms and subject to
the conditions specifically set forth herein, all of its respective
right, title and interest, in, to and under (i) all Receivables
(other than Contributed Receivables), now existing or arising
hereafter and prior to the Purchase Termination Date, and all
payment and enforcement rights (but not any obligations) to, in and
under the related Contracts, (ii) all Collections and other monies
due or to become due with respect to the foregoing, (iii) all
Related Security for the Receivables, (iv) all lockboxes and
accounts to which Collections are sent, and all funds and
investments from time to time therein, (v) all books and records
related to the foregoing and (vi) all proceeds of the foregoing,
including, without limitation, insurance proceeds relating thereto
(collectively, the " Purchased Assets
").
(b) In
consideration of the capital stock of the Purchaser issued to
Covenant Tennessee and Southern Refrigerated, each Owner Originator
agrees to contribute, and does hereby contribute to the Purchaser,
and the Purchaser hereby accepts from such Originator, all of such
Owner Originator’s right, title and interest in and to (i)
Receivables, and all of the rights described in clauses (ii)
through (vi) of Section 2.1(a) related thereto,
starting with the oldest such Receivable such that the aggregate
Unpaid Balance of all such Receivables shall be as close as
possible to, but not less than, $2,000,000 (the "
Initial Contributed Receivables ")
and (ii) all other Contributed Receivables.
(c) On
each Purchase Date, all of such Originator’s right, title and
interest in and to the newly created Receivables (other than, in
the case of an Owner Originator, Receivables indicated on a
Purchase Report as having been contributed by such Owner Originator
to the Purchaser (such Receivables, together with the Initial
Contributed Receivables, the " Contributed
Receivables ")) and the other Purchased
Assets shall be sold, absolutely assigned, transferred and conveyed
to the Purchaser by the sale, absolute assignment, transfer and
conveyance set forth in paragraph (a) of this Section 2.1
and, in the case of each Owner Originator, paragraph (b) of
this Section 2.1, without any further action by such Originator or
the Purchaser; all Contributed Receivables (other than the Initial
Contributed Receivables) of such Owner Originator shall be
contributed to the Purchaser on the date they are created without
further action by such Originator or the Purchaser.
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(c) Section 2.3 (b) of the Original Agreement is replaced with the
following:
(b) On
each Purchase Date falling after the Closing Date until the
Purchase Termination Date, on the terms and subject to the
conditions of this Agreement, the Purchaser shall pay to such
Originator the Purchase Price for the Receivables and other
Purchased Assets purchased from such Originator on such Purchase
Date as follows:
(i) First , (a) if Receivables and Purchased Assets to be
acquired by the Purchaser are sold by both any Non-Owner Originator
and any Owner Originator, by paying (I) to each such Non-Owner
Originator a portion of the Purchase Price due by depositing into
such account as such Non-Owner Originator shall specify immediately
available funds from monies held by or on behalf of the Purchaser
solely to the extent that such monies do not constitute Collections
that are required to be segregated and held by the Master Servicer
or distributed to the Administrator or the Lender pursuant to the
Loan Agreement on the next Distribution Date or required to be paid
to the Master Servicer as the Servicer’s Fee on the next
Distribution Date, or otherwise necessary to pay current expenses
of the Purchaser (in its reasonable discretion) (such available
monies, the "Available Funds"), subject to the terms of the Loan
Agreement, and (II) if any Available Funds remain after making such
payment to the Non-Owner Originators from whom Receivables and
Purchased Assets are to be acquired by the Purchaser on such day,
then to each such Owner Originator a portion of the Purchase Price
due by depositing Available Funds into such account as such
Non-Owner Originator shall specify, (b) if Receivables and
Purchased Assets to be acquired by the Purchaser are sold only by
one or more Non-Owner Originators, by paying to each such Non-Owner
Originator a portion of the Purchase Price due by depositing
Available Funds into such account as such Non-Owner Originator
shall specify and (c) if Receivables and Purchased Assets to be
acquired by the Purchaser are sold only by one or more Owner
Originators, by paying to each such Owner Originator a portion of
the Purchase Price due by depositing Available Funds into such
account as such Owner Originator shall specify . Any Collections
that have been paid to an Originator during any Due Period shall be
credited towards the Purchaser’s obligation pursuant to this
clause first; provided, however, that, if Collections paid to any
Originator exceed the Purchase Price for Receivables and the other
Purchased Assets purchased from such Originator for such Due
Period, or, absent a cash payment, the Purchaser shall not have
sufficient cash to meet its payment obligations pursuant to the
Loan Agreement, such Originator shall turn over such excess to the
Purchaser; and
(ii) Second , if the aggregate of the principal amounts
outstanding under the Originator Notes shall be less than the
Originator Note Limit and if on such Purchase Date (A) only one or
more of the Non-Owner Originators is selling to the Purchaser any
Receivables and other Purchased Assets, by increasing the principal
amount outstanding under the Originator Notes issued to such
Non-Owner Originators up to an amount such that after giving effect
to such increases the aggregate of the principal amounts
outstanding under the Originator Notes
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shall not exceed the Originator Note Limit, (B)
any combination of Owner Originators and Non-Owner Originators are
selling to the Purchaser any Receivables and other Purchased
Assets, then first , by increasing
the principal amount outstanding under the Originator Notes issued
to the Non-Owner Originators, up to an amount such that after
giving effect to such increases the aggregate of the principal
amounts outstanding under the Originator Notes shall not exceed the
Originator Note Limit and second ,
if after giving effect to any increases on such Purchase Date in
the aggregate of the principal amounts outstanding under the
Originator Notes issued to the Non-Owner Originators, the aggregate
of the principal amounts outstanding under the Originator Notes
shall not exceed the Originator Note Limit, by increasing the
principal amount outstanding under the Originator Notes issued to
the Owner Originators up to an amount such that after giving effect
to all increases in the aggregate of the principal amounts
outstanding under the Originator Notes on such Purchase Date, such
aggregate principal amount shall not exceed the Originator Note
Limit or (C) only one or more of the Owner Originators is selling
to the Purchaser any Receivables and other Purchased Assets, by
increasing the principal amount outstanding under the Originator
Notes issued to such Owner Originators up to an amount such that
after giving effect to such increases the aggregate of the
principal amounts outstanding under the Originator Notes shall not
exceed the Originator Note Limit; and
(iii)
Third , unless the Purchase Termination Date has occurred,
at the option of an Owner Originator who is selling Receivables and
other Purchased Assets on such Purchase Date, by accepting a
contribution to the Purchaser’s capital in an amount equal to
the remaining unpaid balance of such Purchase Price payable to such
Owner Originator in exchange for the capital stock of the Purchaser
issued to such Owner Originator making such
contribution.
To the extent that (x) the amount due pursuant to
Section 2.2 with respect to all Receivables created or
origina
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