SIXTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
This Sixth Amendment to Revolving Loan Agreement is entered
into as of the 6th day of August, 1996 between PST Vans, Inc., a
Utah corporation (the "Borrower") and The Bank of New York (the
"Bank").
RECITALS:
A. Borrower and Bank entered into a Revolving Loan Agreement
with Letter of Credit Facility (the "Loan Agreement") dated March
7, 1994. In connection with this Loan Agreement, Borrower made,
executed and delivered to Bank a Revolving Promissory Note, dated
March 7, 1994 in the principal amount of $9,500,000 (the "Note").
Also in connection with the Loan Agreement, and as security for
payment of Borrower's obligations under the Note and Loan
Agreement, Borrower executed a Security Agreement (the "Security
Agreement") dated March 7, 1994, wherein Borrower granted to Bank
a security interest in the Collateral, as defined in the Security
Agreement. The Note, Loan Agreement, Security Agreement and all
other documents executed by Borrower and Bank in connection with
the Loan Agreement are hereafter sometimes referred to collectively
as the "Loan Documents".
B. Borrower is in the process of obtaining additional
financing from Congress Financial Corporation ("Congress") in the
form of a secured loan in an amount not to exceed $7,000,000.00
(the "Congress Loan").
C. Borrower has requested that Bank modify the terms of the
Loan Documents in order to enable Borrower to obtain the Congress
Loan.
D. Bank is willing to modify the terms of the Loan Documents
on the terms and conditions stated herein.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower and Bank agree as follows:
1. Affirmation of Security Interest. Borrower reaffirms and
acknowledges the security interest granted to Bank in the Security
Agreement in which Borrower grants to Bank a security interest in
the "Collateral" defined as all of the following, whether now owned
or hereafter acquired by Borrower:
i. All present and future contracts, contract
rights, accounts, accounts receivable and other rights to
payment for goods sold or leased or for services
rendered, whether now existing or hereafter arising and
wherever arising, and whether or not they have been
earned by performance, and all accessions and additions
thereto, substitutions and replacements therefor, and the
products and proceeds thereof;
ii. All equipment, including without limitation,
all machinery, all manufacturing, distribution, selling,
data processing and office equipment, all furniture,
furnishings, appliances, fixtures and trade fixtures,
tools, vehicles (excluding rolling stock in which title
is represented by a certificate of title), and all other
goods of every type and description, in each instance
whether now owned or hereafter acquired and wherever
located, and all additions and accessions thereto,
substitutions and replacements therefor, and the products
and proceeds thereof;
iii. All chattel paper and all payments thereunder
and instruments and other property (other than real
property) from time to time delivered in respect thereof
or in exchange therefor, and all instruments, bills of
lading, warehouse receipts and other documents of title
and documents, in each instance whether now owned or
hereafter acquired, and all additions and accessions
thereto, substitutions and replacements therefor, and the
products and proceeds thereof;
iv. All rights, interests, choses in action, causes
of actions, claims, deposits, deposit accounts, security
deposits, insurance deposits, general intangibles and all
other intangible property of every kind and nature,
whether now owned or hereafter acquired, whenever and
wherever arising, and all additions and accessions
thereto, substitutions and replacements therefor, and the
products and proceeds thereof; and
v. All property (other than real property) or
interests in property (other than real property) now
owned or hereafter acquired which now may be owned or
hereafter may come into the possession, custody or
control of the Bank or any agent or affiliate of the Bank
in any way or for any purpose (whether for safekeeping,
deposit, custody, pledge, transmission, collection or
otherwise), and all rights and interests, now existing or
hereafter arising and however and wherever arising, in
respect of any and all (i) notes, drafts, letters of
credit, stocks, bonds, and debt and equity securities,
whether or not certificated, and warrants, options, puts
and calls and other rights to acquire or otherwise
relating to the same; (ii) money; (iii) proceeds of
loans, including, without limitation, any loans made by
the Bank; and (iv) insurance proceeds and books and
records relating to the foregoing, and all additions and
accessions thereto, substitutions and replacements
therefor, and the products and proceeds thereof.
2. Silent Second on Accounts. Notwithstanding anything to
the contrary in the Security Agreement, Bank agrees that, in
relation to the portion of the Collateral, Bank's security interest
is subordinate to and subject to a security interest granted or to
be granted by Borrower in favor of Congress in connection with the
Congress Loan as set forth in the Intercreditor and Subordination
Agreement between Congress and Bank, a copy of which is attached
hereto and incorporated herein as Exhibit "A". The scope and
extent of the subordination is described in the attached
Intercreditor and Subordination Agreement with the exact
description of the affected Collateral set forth in Exhibit "B" to
said Agreement. Bank further agrees, as an accommodation to
Borrower, that Bank will take no action to collect Accounts or
otherwise enforce its remedies as against Accounts so long as any
indebtedness owed by Borrower to Congress under the Congress Loan
(and secured by a security interest in the Accounts) is
outstanding. Nothing in this paragraph 2 shall prevent Bank from
taking whatever steps are deemed necessary by Bank to perfect its
security interest in Accounts (including the filing of any UCC
financing statements and continuation statements) and further
nothing in this paragraph 2 modifies or eliminates Borrower's
obligation to provide Bank a perfected security interest in the
Accounts.
3. Incorporation by Reference. The entire Loan Agreement
and any prior written amendments (the "Prior Amendment") are hereby
incorporated by this reference into this Amendment as if those
agreements were fully set out in the text of this Amendment,
subject however, to the modifications and amendments which are
herein set forth. Accordingly, all defined terms found in the Loan
Agreement and the Prior Amendment shall have the same meaning
herein (including in the recitals above), except to the extent that
amendments to such definitions are made in this Amendment.
4. Borrower Acknowledgments and Waivers. Borrower hereby
represents, warrants, acknowledges and agrees that, as of the date
hereof: (a) Borrower has no offsets, counterclaims or other claims
of damage or liability against Bank or defenses to payments due
under the Obligations, Borrower, in all events, hereby knowingly
and intentionally waiving, relinquishing and releasing the right to
assert or claim any of the foregoing; (b) Bank is not nor has it
been in breach or default of any of the duties or obligations of
Bank under any of the Loan Documentation, and Borrower fully and
knowingly hereby waives, releases and relinquishes the right to
make any claim for the same; (c) the execution and performance of
this Amendment have been duly authorized pursuant to all necessary
corporate authority; and (d) the recitals set forth above in this
Amendment are true. Borrower further reaffirms its obligations
hereunder and all of the Obligations, as modified hereby. Except
as specifically and expressly provided in writing signed by the
Bank, neither this Amendment nor any action taken in accordance
herewith shall constitute a release or waiver of any obligation or
liability of Borrower under the Loan Documentation, including the
Loan Agreement or the Note.
5. Integration. The incorporation herein of the Loan
Agreement and the Prior Amendment accomplishes a full integration
of the agreements of the Borrower and Bank and the Loan Agreement
shall now be the integrated and coordinated compilation of the
original Loan Agreement, the Prior Amendment and this Amendment and
is the final and definitive written expression and agreement of the
parties with respect to the subject matter thereof. All prior
writings and notes are superseded by this integrated agreement,
provided that nothing herein is meant to abrogate, except to the
extent specifically modified or amended hereby, the Note, the Loan
Agreement, or any of the other Loan Documentation. No prior oral
understanding or agreement contradictory to the terms of this
Amendment and the integrated Loan Agreement survives the execution
hereof.
6. Further Assurances. Borrower agrees to take or cause to
be taken all such other actions as shall be reasonably required by
Bank in connection with and in perfection or continuation of the
rights of the Bank with respect to the Obligations. Borrower shall
also execute or cause to be executed such other documents, papers,
instruments and agreements which are deemed, in the reasonable
judgment of the Bank, to be necessary to complete, perfect or
otherwise finalize the agreements and arrangements contemplated by
this Amendment.
7. Counterparts. This Sixth Amendment to Revolving Loan
Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and such counterparts together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have caused this Sixth
Amendment to be executed as of the date first written above.
BORROWER: THE BANK:
PST VANS, INC. THE BANK OF NEW YORK
By: By:
Its: Its:
SEVENTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
This Seventh Amendment to Revolving Loan Agreement (the
"Amendment") is entered into as of the 30th day of September, 1996,
between PST Vans, Inc., a Utah corporation (the "Borrower") and The
Bank of New York (the "Bank").
RECITALS:
A. Borrower and Bank entered into a Revolving Loan Agreement
with Letter of Credit Facility (the "Loan Agreement") dated
March 7, 1994 (as amended). In connection with the Loan Agreement,
Borrower made, executed and delivered to Bank a Revolving
Promissory Note, dated March 7, 1994, in the principal amount of
$9,500,000 (the "Note"). Also in connection with the Loan
Agreement, and as security for payment of Borrower's obligations
under the Note and Loan Agreement, Borrower executed a Security
Agreement (the "Security Agreement") dated March 7, 1994, wherein
Borrower granted to Bank a security interest in the Collateral, as
defined in the Security Agreement. The Note, Loan Agreement,
Security Agreement and all other documents executed by Borrower and
Bank in connection with the Loan Agreement are hereafter sometimes
referred to collectively as the "Loan Documents".
B. Borrower has requested that Bank modify the terms of the
Loan Agreement with respect to certain financial covenants and that
other changes to the Loan Agreement be made.
C. Bank is willing to modify the terms of the Loan Documents
on the terms and conditions stated herein.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower and Bank agree as follows:
1. Debt Service Coverage Ratio. Section 5.8(b) of the Loan
Agreement is amended to provide that the debt service coverage
ratio for the quarter ending September 30, 1996, shall be at least
.69 to 1.00, and for the quarter ending December 31, 1996, shall be
at least .80 to 1.00. All other quarterly calculations shall be
governed by the minimum ratio of 1.30 to 1.00 as stated in the Loan
Agreement.
2. Fixed Charge Coverage Ratio. Section 5.8(c) of the Loan
Agreement is amended to provide that the fixed charge coverage
ratio for the quarter ending September 30, 1996, shall be at least
.81 to 1.00, and for the quarter ending December 31, 1996, shall be
at least .86 to 1.00. All other quarterly calculations shall be
governed by the minimum ratio of 1.30 to 1.00 as stated in the Loan
Agreement.
3. Payment of Excess Letter of Credit Draws. With respect
to the Bank's security interest in the right and claim of Borrower
to have draws under a Letter of Credit that exceed the amounts that
are otherwise due to beneficiary returned to Borrower (as provided
in Section 4 of the Fifth Amendment to Revolving Loan Agreement
entered into as of the 29th of March, 1996), by not later than
October 15, 1996, Borrower shall transmit irrevocable instructions
to each beneficiary of the Standby Letters of Credit to pay any
such excess to Bank directly rather than to Borrower and provide
Bank evidence of such transmittal. The irrevocable instructions
shall be in the general form of Exhibit "A" attached hereto and
incorporated herein. Nothing in this section shall be deemed to be
an acknowledgment by Borrower or the Bank that any beneficiary is
entitled to draw on a Letter of Credit an amount that is greater
than the amount that is owed at the time to the beneficiary.
4. Reduction in Letter of Credit Facility. By not later
than October 15, 1996, Borrower shall reduce permanently and shall
provide to Bank evidence thereof, the Letter of Credit Facility by
a minimum amount of $600,000.00.
5. No Obligation to Enter into Additional Amendments.
Borrower agrees and acknowledges that this Seventh Amendment,
together with all prior Amendments entered into between Borrower
and Bank, shall create no further obligations on Bank to enter into
any additional amendments in the future.
6. Affirmation of Security Interest. Borrower reaffirms and
acknowledges the security interests heretofore granted to Bank in
the Security Agreement and any prior Amendments to the Revolving
Loan Agreement.
7. Incorporation by Reference. The entire Loan Agreement
and any prior written amendments (the "Prior Amendment") are hereby
incorporated by this reference into this Amendment as if those
agreements were fully set out in the text of this Amendment,
subject however, to the modifications and amendments which are
herein set forth. Accordingly, all defined terms found in the Loan
Agreement and the Prior Amendment shall have the same meaning
herein (including in the recitals above), except to the extent that
amendments to such definitions are made in this Amendment.
8. Borrower Acknowledgments and Waivers. Borrower hereby
represents, warrants, acknowledges and agrees that, as of the date
hereof: (a) Borrower has no offsets, counterclaims or other claims
of damage or liability against Bank or defenses to payments due
under the Obligations, and Borrower, in all events, hereby
knowingly and intentionally waives, relinquishes and releases the
right to assert or claim any of the foregoing; (b) Bank is not nor
has it been in breach or default of any of the duties or
obligations of Bank under any of the Loan Documentation, and
Borrower fully and knowingly hereby waives, releases and
relinquishes the right to make any claim for the same; (c) the
execution and performance of this Amendment have been duly
authorized pursuant to all necessary corporate authority; and (d)
the recitals set forth above in this Amendment are true. Borrower
further reaffirms its obligations hereunder and all of the
Obligations, as modified hereby. Except as specifically and
expressly provided in writing signed by the Bank, neither this
Amendment nor any action taken in accordance herewith shall
constitute a release or waiver of any obligation or liability of
Borrower under the Loan Documentation, including the Loan Agreement
or the Note.
9. Integration. The incorporation herein of the Loan
Agreement and the Prior Amendment accomplishes a full integration
of the agreements of the Borrower and Bank and the Loan Agreement
shall now be the integrated and coordinated compilation of the
original Loan Agreement, the Prior Amendment and this Amendment and
is the final and definitive written expression and agreement of the
parties with respect to the subject matter thereof. All prior
writings and notes are superseded by this integrated agreement,
provided that nothing herein is meant to abrogate, except to the
extent specifically modified or amended hereby, the Note, the Loan
Agreement, or any of the other Loan Documentation. No prior oral
understanding or agreement contradictory to the terms of this
Amendment and the integrated Loan Agreement survives the execution
hereof.
10. Further Assurances. Borrower agrees to take or cause to
be taken all such other actions as shall be reasonably required by
Bank in connection with and in perfection or continuation of the
rights of the Bank with respect to the Obligations. Borrower shall
also execute or cause to be executed such other documents, papers,
instruments and agreements which are deemed, in the reasonable
judgment of the Bank, to be necessary to complete, perfect or
otherwise finalize the agreements and arrangements contemplated by
this Amendment.
11. Counterparts. This Seventh Amendment to Revolving Loan
Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and such counterparts together
shall constitute one and the same agreement.
SEVENTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
IN WITNESS WHEREOF the parties hereto have caused this Seventh
Amendment to be executed as of the date first written above.
BORROWER: THE BANK:
PST VANS, INC. THE BANK OF NEW YORK
By: By:
Its: Its:
EIGHTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
This Eighth Amendment to Revolving Loan Agreement (the
"Amendment") is entered into as of the 27th day of December, 1996,
between PST Vans, Inc., a Utah corporation (the "Borrower") and The
Bank of New York (the "Bank").
RECITALS:
A. Borrower and Bank entered into a Revolving Loan Agreement
with Letter of Credit Facility (the "Loan Agreement") dated
March 7, 1994 (as amended). In connection with the Loan Agreement,
Borrower made, executed and delivered to Bank a Revolving
Promissory Note, dated March 7, 1994, in the principal amount of
$9,500,000 (the "Note"). Also in connection with the Loan
Agreement, and as security for payment of Borrower's obligations
under the Note and Loan Agreement, Borrower executed a Security
Agreement (the "Security Agreement") dated March 7, 1994, wherein
Borrower granted to Bank a security interest in the Collateral, as
defined in the Security Agreement. The Note, Loan Agreement,
Security Agreement and all other documents executed by Borrower and
Bank in connection with the Loan Agreement are hereafter sometimes
referred to collectively as the "Loan Documents".
B. Borrower has requested that Bank modify the terms of the
Loan Agreement with respect to certain financial covenants and that
other changes to the Loan Agreement be made.
C. Since July 1, 1996, Bank has incurred legal expenses and
costs in the amount of $5,011.06 in connection with (i) negotiating
and documenting an extension agreement with Zion's Bank relating to
Borrower's accounts receivable financing, (ii) negotiating and
documenting a subordination agreement with Congress Financial
relating to Borrower's replacement accounts receivable financing,
and (iii) negotiating and documenting the Seventh Amendment to the
Loan Agreement. In addition, Bank is incurring legal expenses and
costs in the amount of $450.00 in connection with this Eighth
Amendment. In summary Bank has incurred or will incur legal
expenses and costs totalling $5,461.06 relating to the Loan
Agreement. Bank has paid $604.00 of the fees and costs incurred,
leaving an unpaid balance due to Bank's counsel of $4,857.06.
D. Bank is willing to modify the terms of the Loan Documents
on the terms and conditions stated herein.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower and Bank agree as follows:
1. Debt Service Coverage Ratio. Section 5.8(b) of the Loan
Agreement is amended to provide that the debt service coverage
ratio for the quarter ending December 31, 1996, shall be at least
.60 to 1.00. All other quarterly calculations shall be governed by
the minimum ratio of 1.30 to 1.00 as stated in the Loan Agreement.
2. Fixed Charge Coverage Ratio. Section 5.8(c) of the Loan
Agreement is amended to provide that the fixed charge coverage
ratio for the quarter ending December 31, 1996 shall be at least
.71 to 1.00. All other quarterly calculations shall be governed by
the minimum ratio of 1.30 to 1.00 as stated in the Loan Agreement.
3. Reduction in Letter of Credit Facility. By not later
than January 31, 1997, Borrower shall reduce permanently and shall
provide to Bank evidence thereof, the Letter of Credit Facility by
a minimum amount of $1,500,000.00.
4. Contemporaneously with the delivery of this Eighth
Amendment, Borrower shall deliver to Ray, Xxxxxxx & Xxxxxxx two (2)
payments in the form of checks or drafts, the first made payable to
Ray, Xxxxxxx & Xxxxxxx in the amount of $4,857.06 and the second
made payable to The Bank of New York in the amount of $604.00.
5. No Obligation to Enter into Additional Amendments.
Borrower agrees and acknowledges that this Eighth Amendment,
together with all prior Amendments entered into between Borrower
and Bank, shall create no further obligations on Bank to enter into
any additional amendments in the future.
6. Affirmation of Security Interest. Borrower reaffirms and
acknowledges the security interests heretofore granted to Bank in
the Security Agreement and any prior Amendments to the Revolving
Loan Agreement.
7. Incorporation by Reference. The entire Loan Agreement
and any prior written amendments (the "Prior Amendment") are hereby
incorporated by this reference into this Amendment as if those
agreements were fully set out in the text of this Amendment,
subject however, to the modifications and amendments which are
herein set forth. Accordingly, all defined terms found in the Loan
Agreement and the Prior Amendment shall have the same meaning
herein (including in the recitals above), except to the extent that
amendments to such definitions are made in this Amendment.
8. Borrower Acknowledgments and Waivers. Borrower hereby
represents, warrants, acknowledges and agrees that, as of the date
hereof: (a) Borrower has no offsets, counterclaims or other claims
of damage or liability against Bank or defenses to payments due
under the Obligations, and Borrower, in all events, hereby
knowingly and intentionally waives, relinquishes and releases the
right to assert or claim any of the foregoing; (b) Bank is not nor
has it been in breach or default of any of the duties or
obligations of Bank under any of the Loan Documentation, and
Borrower fully and knowingly hereby waives, releases and
relinquishes the right to make any claim for the same; (c) the
execution and performance of this Amendment have been duly
authorized pursuant to all necessary corporate authority; and (d)
the recitals set forth above in this Amendment are true. Borrower
further reaffirms its obligations hereunder and all of the
Obligations, as modified hereby. Except as specifically and
expressly provided in writing signed by the Bank, neither this
Amendment nor any action taken in accordance herewith shall
constitute a release or waiver of any obligation or liability of
Borrower under the Loan Documentation, including the Loan Agreement
or the Note.
9. Integration. The incorporation herein of the Loan
Agreement and the Prior Amendment accomplishes a full integration
of the agreements of the Borrower and Bank and the Loan Agreement
shall now be the integrated and coordinated compilation of the
original Loan Agreement, the Prior Amendment and this Amendment and
is the final and definitive written expression and agreement of the
parties with respect to the subject matter thereof. All prior
writings and notes are superseded by this integrated agreement,
provided that nothing herein is meant to abrogate, except to the
extent specifically modified or amended hereby, the Note, the Loan
Agreement, or any of the other Loan Documentation. No prior oral
understanding or agreement contradictory to the terms of this
Amendment and the integrated Loan Agreement survives the execution
hereof.
10. Further Assurances. Borrower agrees to take or cause to
be taken all such other actions as shall be reasonably required by
Bank in connection with and in perfection or continuation of the
rights of the Bank with respect to the Obligations. Borrower shall
also execute or cause to be executed such other documents, papers,
instruments and agreements which are deemed, in the reasonable
judgment of the Bank, to be necessary to complete, perfect or
otherwise finalize the agreements and arrangements contemplated by
this Amendment.
11. Counterparts. This Eighth Amendment to Revolving Loan
Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and such counterparts together
shall constitute one and the same agreement.
EIGHTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
IN WITNESS WHEREOF the parties hereto have caused this Eighth
Amendment to be executed as of the date first written above.
BORROWER: THE BANK:
PST VANS, INC. THE BANK OF NEW YORK
By: By:
Its: Its:
NINTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
This Ninth Amendment to Revolving Loan Agreement (the
"Amendment") is entered into as of the 21st day of March, 1997,
between PST Vans, Inc., a Utah corporation (the "Borrower") and The
Bank of New York (the "Bank").
RECITALS:
A. Borrower and Bank entered into a Revolving Loan Agreement
with Letter of Credit Facility (the "Loan Agreement") dated
March 7, 1994 (as amended). In connection with the Loan Agreement,
Borrower made, executed and delivered to Bank a Revolving
Promissory Note, dated March 7, 1994, in the principal amount of
$9,500,000 (the "Note"). Also in connection with the Loan
Agreement, and as security for payment of Borrower's obligations
under the Note and Loan Agreement, Borrower executed a Security
Agreement (the "Security Agreement") dated March 7, 1994, wherein
Borrower granted to Bank a security interest in the Collateral, as
defined in the Security Agreement. The Note, Loan Agreement,
Security Agreement and all other documents executed by Borrower and
Bank in connection with the Loan Agreement are hereafter sometimes
referred to collectively as the "Loan Documents".
B. Borrower has requested that Bank modify the terms of the
Loan Agreement with respect to certain financial covenants and that
other changes to the Loan Agreement be made.
C. Since January 1, 1997, Bank has incurred and is incurring
legal expenses and costs in the amount of $1,500 in connection with
negotiating and documenting this Ninth Amendment.
D. Bank is willing to modify the terms of the Loan Documents
on the terms and conditions stated herein.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower and Bank agree as follows:
1. By not later than July 31, 1997, Borrower shall reduce
permanently and shall provide to Bank evidence thereof, the Letter
of Credit Facility by a minimum amount of $1,000,000.
2. By not later than September 30, 1997, Borrower shall
reduce permanently and shall provide to Bank evidence thereof, the
Letter of Credit Facility by an additional minimum amount of
$2,000,000.
3. The Termination Date under the Loan Agreement shall be
December 31, 1997 (unless termination occurs under Section 8.2 of
the Agreement), and all remaining letters of credit must be
terminated no later than that date. If on the Termination Date,
there are undrawn letters of credit that remain outstanding,
Borrower must (i) deposit in an account with the Bank (with
Borrower having no right to withdraw the funds), an amount at least
equal to one hundred and five percent (105%) of the amount of all
such outstanding letters of credit, which account shall be held
exclusively as security for the reimbursement obligations
associated with those letters of credit, or (ii) deliver an
unconditional letter or letters of credit, each in a form
acceptable to the Bank and each issued by an institution acceptable
to the Bank that total one hundred and five percent (105%) of the
amount of all the outstanding letters of credit issued by the Bank
for the account of Borrower, which shall serve to ensure payment of
the reimbursement obligations of Borrower to the Bank.
4. In addition to other charges, fees and payments payable under the
Loan Agreement, Borrower shall pay to the Bank a one percent (1%) annual fee
through March 31, 1997; and one and one-half percent (1.5%) annual fee from
April 1, 1997 through June 30, 1997; and thereafter a two percent (2%) annual
fee on the undrawn portion of the letters of credit, payable in advance on a
calendar quarterly basis on the first day of each such quarter.
5. Section 5.8(a) of the Loan Agreement is modified to
provide that Borrower shall maintain its Tangible Net Worth at the
following minimum levels for the time period stated:
Time Period Tangible Net Worth
1/31/97 to 3/31/97 $10,700,000
4/1/97 to 6/30/97 $10,225,000
7/1/97 to 12/31/97 $9,750,000
"Tangible Net Worth" is defined as the amount by which the par
value (or value stated on the books of Borrower) of all classes of
the capital stock of Borrower plus (or minus in the case of
deficit) the amount of surplus, whether capital or earned, of the
Borrower for goodwill, licenses, patents, trademarks, treasury
stock, unamortized debt discount and expense, leasehold
improvements and other intangibles for cost of investments in
excess of net assets at the time of acquisition by Borrower, and
for any write-up in the book value of any assets of the Borrower
resulting from the subsequent revaluation thereof, each determined
by reference to Borrower's financial statements to be provided to
the Bank under the Loan Agreement.
6. The financial covenants set forth in Sections 5.8(b) and
(c) of the Loan Agreement are deleted.
7. Transactions with Affiliates. Borrower shall not enter
into any contractual agreement with any affiliate, to be defined to
include a parent, subsidiary, shareholder holding at least five
percent (5%) of Borrower's outstanding stock, director or officer,
without the prior written consent of the Bank.
8. Payment of Attorneys' Fees and Costs. Contemporaneously
with the delivery of this Ninth Amendment, Borrower shall deliver
to Ray, Xxxxxxx & Xxxxxxx a payment in the form of a check or draft
made payable to Ray, Xxxxxxx & Xxxxxxx in the amount of $1,500.
9. No Obligation to Enter into Additional Amendments.
Borrower agrees and acknowledges that this Ninth Amendment,
together with all prior Amendments entered into between Borrower
and Bank, shall create no further obligations on Bank to enter into
any additional amendments in the future.
10. Affirmation of Security Interest. Borrower reaffirms and
acknowledges the security interests heretofore granted to Bank in
the Security Agreement and any prior Amendments to the Revolving
Loan Agreement.
11. Incorporation by Reference. The entire Loan Agreement
and any prior written amendments (the "Prior Amendment") are hereby
incorporated by this reference into this Amendment as if those
agreements were fully set out in the text of this Amendment,
subject however, to the modifications and amendments which are
herein set forth. Accordingly, all defined terms found in the Loan
Agreement and the Prior Amendment shall have the same meaning
herein (including in the recitals above), except to the extent that
amendments to such definitions are made in this Amendment.
12. Borrower Acknowledgments and Waivers. Borrower hereby
represents, warrants, acknowledges and agrees that, as of the date
hereof: (a) Borrower has no offsets, counterclaims or other claims
of damage or liability against Bank or defenses to payments due
under the Obligations, and Borrower, in all events, hereby
knowingly and intentionally waives, relinquishes and releases the
right to assert or claim any of the foregoing; (b) Bank is not nor
has it been in breach or default of any of the duties or
obligations of Bank under any of the Loan Documentation, and
Borrower fully and knowingly hereby waives, releases and
relinquishes the right to make any claim for the same; (c) the
execution and performance of this Amendment have been duly
authorized pursuant to all necessary corporate authority; and (d)
the recitals set forth above in this Amendment are true. Borrower
further reaffirms its obligations hereunder and all of the
Obligations, as modified hereby. Except as specifically and
expressly provided in writing signed by the Bank, neither this
Amendment nor any action taken in accordance herewith shall
constitute a release or waiver of any obligation or liability of
Borrower under the Loan Documentation, including the Loan Agreement
or the Note.
13. Integration. The incorporation herein of the Loan
Agreement and the Prior Amendment accomplishes a full integration
of the agreements of the Borrower and Bank and the Loan Agreement
shall now be the integrated and coordinated compilation of the
original Loan Agreement, the Prior Amendment and this Amendment and
is the final and definitive written expression and agreement of the
parties with respect to the subject matter thereof. All prior
writings and notes are superseded by this integrated agreement,
provided that nothing herein is meant to abrogate, except to the
extent specifically modified or amended hereby, the Note, the Loan
Agreement, or any of the other Loan Documentation. No prior oral
understanding or agreement contradictory to the terms of this
Amendment and the integrated Loan Agreement survives the execution
hereof.
14. Further Assurances. Borrower agrees to take or cause to
be taken all such other actions as shall be reasonably required by
Bank in connection with and in perfection or continuation of the
rights of the Bank with respect to the Obligations. Borrower shall
also execute or cause to be executed such other documents, papers,
instruments and agreements which are deemed, in the reasonable
judgment of the Bank, to be necessary to complete, perfect or
otherwise finalize the agreements and arrangements contemplated by
this Amendment.
15. Counterparts. This Ninth Amendment to Revolving Loan
Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and such counterparts together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have caused this Ninth
Amendment to be executed as of the date first written above.
BORROWER: THE BANK:
PST VANS, INC. THE BANK OF NEW YORK
By: By:
Its: Its:
