Exhibit 10(j)
AMENDMENT NO. 7
TO LOAN AND SECURITY AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
The Loan and Security Agreement dated June 11, 1997, between OTR
EXPRESS, INC., as Debtor, and HSBC BUSINESS LOANS, INC. (now known as
HSBC Business Credit (USA) Inc.), as Secured Party (the Loan and
Security Agreement, as amended from time to time, is hereinafter
referred to as the "Loan Agreement"), and the Transaction Documents (as
defined in the Loan Agreement), are hereby amended as follows:
RECITALS
A. Debtor has advised Secured Party that various Events of
Default (as defined in the Loan Agreement) exist and are continuing
under the Loan Agreement, including, without limitation, violations of
the financial covenants contained in Item 30 of the Schedule to the
Loan Agreement; and
B. Debtor has requested that Secured Party forbear from
enforcing any of its rights and remedies under the Loan Agreement, the
other Transaction Documents and applicable law; and
C. Secured Party is willing to forbear from enforcing its
rights and remedies under the Loan Agreement, the other Transaction
Documents and applicable law on the terms set forth herein, but only if
Debtor agrees to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and
the mutual covenants of the parties, the parties agree as follows:
1. Debtor acknowledges and agrees that the security interests and liens
granted by Debtor to Secured Party under the Loan Agreement and
the other Transaction Documents remain first and valid security
interests in and liens on the Collateral. Debtor represents and
warrants that as of the date of this Amendment, there are no
claims, setoffs or defenses to Secured Party's exercise of any
rights or remedies available to Secured Party under the
Transaction Documents.
2. The Loan Agreement and the other Transaction Documents are hereby
amended in the following respects:
a. The definition of the term "Maximum Amount" appearing in Section
1.1(bb-1) of the Loan Agreement is hereby deleted and the following is
inserted in place thereof:
"(bb-1) MAXIMUM AMOUNT means $7,500,000.00."
b. The Amended and Restated Promissory Note dated June 30, 1999 in the
principal amount of $10,000,000.00 from Debtor, as maker, payable to
the order of Secured Party is hereby amended by deleting all references
therein to the amount $10,000,000.00 and substituting in place thereof
the amount $7,500,000.00.
3. Debtor and Secured Party agree that for the period commencing on the
date of this Amendment and continuing through and including March
31, 2001, the $1,000,000.00 reserve against Receivables created
pursuant to Section 2.3 of the Loan Agreement shall be reduced to
$750,000.00. Effective April 1, 2001, the reserve will again be
$1,000,000.00 without further action by either Secured Party or
Debtor. The amount of such reserve will be subtracted from the
Receivables Borrowing Base when calculating the amount of the
Borrowing Capacity.
4. Debtor hereby acknowledges that Secured Party reserves and preserves
all of its rights and remedies under the Loan Agreement, the
other Transaction Documents and applicable law arising from or
relating to any Events of Default that now exist or hereafter
arise under the Loan Agreement or the other Transaction Documents
and agrees that Secured Party may exercise such rights and
remedies at any time and from time to time without further notice
to Debtor. Debtor agrees that by entering into this Amendment,
Secured Party is not waiving any Events of Default that exist on
the date of this Amendment or the right to exercise any rights or
remedies under the Loan Agreement, the other Transaction
Documents or applicable law at any time in the future.
5. Contemporaneously with the execution of this Amendment by Debtor,
Debtor shall pay to Secured Party a loan modification fee of
$5,000.00.
6. Debtor represents and warrants to Secured Party that as of the date of
this Amendment:
a. Except as disclosed in writing to Secured Party on the date hereof,
Debtor is not in default under the terms and provisions of the Loan
Agreement or any other Transaction Document. No Event of Default, nor
any condition, event, act or omission which with notice or lapse of
time, or both, would become an Event of Default, exists under the terms
and provisions of the Loan Agreement or the other Transaction
Documents.
b. Debtor is duly organized, validly existing and in good standing
under the laws of the State of Kansas.
c. The execution, delivery and performance by Debtor of this Amendment
have been duly authorized by all necessary corporate action and have
received the requisite corporate approvals.
d. This Amendment constitutes the valid and legally binding obligation
of Debtor and is enforceable against Debtor in accordance with its
terms.
e. The execution and delivery of this Amendment shall not constitute a
violation of, or default under, or conflict with any term or provision
of any contract, lease or other agreement to which Debtor is a party or
by which Debtor is bound. Except as disclosed in writing to Secured
Party on the date hereof, Debtor is not in default under any material
contract or agreement to which it is a party or by which it is bound,
or to which any of its property is subject, nor has any event occurred
which after the giving of notice or the passage of time, or both, would
constitute a default under any such contract or agreement other than
those which have been waived by the non-defaulting party or satisfied
by Debtor.
7. Except as specifically amended or modified herein, all of the terms,
conditions and covenants contained in the Loan Agreement and the
other Transaction Documents shall remain in full force and effect
and are hereby fully ratified and confirmed. If and to the
extent that any of the terms and provisions of the Loan Agreement
and the other Transaction Documents, as originally executed and
previously amended, are in conflict with or inconsistent with any
of the terms and provisions of this Amendment, this Amendment
shall govern. All Transaction Documents shall be deemed amended
to be consistent with the terms of this Amendment. Debtor agrees
that it has no defenses, setoffs or counterclaims to Secured
Party's enforcement of its rights and remedies under the Loan
Agreement, the other Transaction Documents and applicable law.
8. Capitalized terms used in this Amendment shall have the same meanings
as specified in the Loan Agreement, except as otherwise expressly provided
herein.
9. The terms and conditions of this Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
10. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT DEBTOR
AND SECURED PARTY FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS REACHED COVERING SUCH MATTERS ARE CONTAINED IN THE
TRANSACTION DOCUMENTS, WHICH ARE THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, EXCEPT AS THEY
MAY LATER AGREE IN WRITING TO MODIFY IT.
IN WITNESS WHEREOF, this Amendment No. 7 to Loan and Security
Agreement and Other Transaction Documents (the "Amendment") has been
executed by the parties as of the 22 day of February, 2001.
DEBTOR:
OTR EXPRESS, INC.
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
President and Chief Executive
Officer
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President and
Chief Financial Officer
SECURED PARTY:
HSBC BUSINESS CREDIT (USA) INC.
(formerly known as HSBC
Business Loans, Inc.)
By: /s/ M. Xxxxxxxxx Xxxxxx
M. Xxxxxxxxx Xxxxxx, Vice
President
