Exhibit 10(t)
February 26, 2001
Xx. Xxxxxxx Xxxx
President
OTR Express, Inc.
X.X. Xxx 0000
Xxxxxx, XX 00000
Re: Agreement Regarding Private Sale and Deficiency Balance
Dear Xx. Xxxx:
Reference is made to all of the financing arrangements by and between
OTR Express, Inc. ("OTR") and Navistar Financial Corporation ("NFC"),
evidenced by those Commercial Loan and Security Agreements (the "Agreements")
of various dates by and between OTR and NFC, pursuant to which OTR is
obligated and indebted to NFC in the approximate sum of $15,311,493.23 as of
the date hereof.
OTR hereby acknowledges the existence of one or more events of default
by OTR under the referenced financing arrangements, which are continuing as
of the date hereof. OTR further acknowledges NFC's senior and exclusive lien
and security interest in and to the equipment listed in Schedule A hereto
(the "Equipment")
OTR has requested and NFC has agreed that OTR shall freely surrender to
NFC, from time to time, possession of certain groups or pieces of equipment
(the "Surrendered Equipment"), and hereby consents to NFC's taking of said
property. All remaining Equipment shall be retained by OTR and paid as
agreed pursuant to the Agreements.
With regard to the Surrendered Equipment, OTR acknowledges that NFC
shall notify OTR of a private sale of same. The notice shall provide for (a)
a sale to be held on or after 10 days from the date of surrender; (b) the
right to redeem the Surrendered Equipment, (c) the right to demand a public
sale of the Surrendered Equipment, and (d) that NFC intends to pursue its
claim against OTR for the amount of any deficiency due and owing.
Notwithstanding the foregoing, OTR hereby waives any notice of private sale,
the right to redeem and the right to demand a public sale of the Surrendered
Equipment, and any other notices as may be required under applicable law.
OTR consents and agrees to the private sale or sales of the Surrendered
Equipment and that the above-described sale or sales will be held in a
commercially reasonable manner.
OTR agrees that it will not interfere with, or impede NFC or any of
NFC's agents, successors or assigns in the liquidation of the Surrendered
Equipment, but will, on the contrary, cooperate fully with NFC in its efforts
to foreclose upon its lien and/or liquidate the Surrendered Equipment. OTR
will instruct, cause and direct his agents, customers and employees to
cooperate with NFC, and NFC's agents, successors or assigns.
OTR further affirms, confirms and ratifies the above stated
indebtedness to NFC and acknowledges that it will remain liable for the
deficiency, if any, after the disposition of the Surrendered Equipment.
Nothing in this letter or elsewhere contained to the contrary shall
constitute an acceptance by NFC as a discharge of OTR's obligations and
indebtedness to NFC, except to the extent of NFC's net recovery from the
disposition thereof.
Upon the return of the Surrendered Equipment, NFC shall credit OTR's
outstanding obligations under the Agreements for the estimated value of the
Surrendered Equipment in an amount as follows: (1) for each 1998
International tractor, the sum of $36,500; (2) for each 1999 International
tractor, the sum of $46,000; (3) for each 1997 Utility and Trailmobile
trailer the sum of $12,000; and (4) for each 2000 International 9400 tractor,
the sum of $56,000; and (5) for each 2000 International 9900 tractor, the sum
of $58,000 (collectively referred to as the "Allowed Credit").
The net payoff due on each piece of Surrendered Equipment as of the
date of surrender, less the Allowed Credit shall equal the "Estimated
Deficiency Balance." OTR shall sign a promissory note, in substantially the
same form as Exhibit C attached hereto, in the sum of the Estimated
Deficiency Balance. Once the Surrendered Equipment is sold, the promissory
note shall be amended to reflect the amount of the "Actual Deficiency
Balance." The Actual Deficiency Balance shall equal the payoff due on each
piece of Surrendered Equipment as of the date of surrender, less the net
sales price (net sales price shall be equal to the sales price less the costs
of sale including, but not limited to, recovery costs, reconditioning fees,
sales commissions, and reasonable attorneys fees and costs). In the event
that the Actual Deficiency Balance is greater than the Estimated Deficiency
Balance, the promissory note shall be amended upward by the excess of the
Actual Deficiency Balance over the Estimated Deficiency Balance. In the
event that the Actual Deficiency Balance is less than the Estimated
Deficiency Balance, the promissory note shall be amended downward by the
excess of the Estimated Deficiency Balance over the Actual Deficiency
Balance.
The initial promissory note entered into between OTR and NFC for the first
group of Surrendered Equipment shall be amortized over a 60 month term at
8.5% interest, with interest only payments due until October 1, 2001. The
terms of any subsequent promissory note on separate group(s) of Surrendered
Equipment shall be mutually agreed upon by OTR and NFC.
NFC, by its acceptance hereof, shall not be deemed to have, nor will
assert that NFC has, waived or relinquished any rights and remedies provided
under the financing arrangements, or at law or in equity, all of which rights
and remedies are cumulative and not exclusive. NFC's exercise, non-exercise,
or delay or forbearance in the exercise, of any such right or remedy shall
not be deemed or asserted to constitute a waiver or relinquishment thereof or
to preclude the simultaneous or subsequent exercise by the occurrence,
continuation or reoccurrence of the same or any other facts, circumstances,
events or defaults giving rise thereto or to the right to the exercise
thereof.
This agreement shall be governed by and construed in accordance with the laws
and judicial decisions of the State of Illinois. If any provision (or
any part of any provision) contained in this agreement shall for any
reason be held or deemed to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision (or remaining part of the affected
provision) of this agreement, and this agreement shall be construed as
if such invalid, illegal or unenforceable provision (or part thereof)
had never been contained herein and the remaining provisions of this
agreement shall remain in full force and effect.
OTR AND NFC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
AND ANY TRANSACTION CONTEMPLATED IN CONNECTION HEREWITH, OR COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR NFC ENTERING
INTO THIS AGREEMENT.
Sincerely yours,
NAVISTAR FINANCIAL CORPORATION
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Regional Operations Manager
Acknowledged:
OTR Express, Inc.
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx Xxxx
Its: President
