FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (the "Amendment"),
dated as of February 28, 1997, is made by and between PST Vans, Inc., a Utah
corporation ("Borrower"), and Congress Financial Corporation (Northwest), an
Oregon corporation ("Lender"), for the purpose of amending their Loan and
Security Agreement (with Addendum) dated August 6, 1996, as it has previously
been amended (the "Loan Agreement"). All capitalized terms not otherwise defined
in this Amendment have the meanings given to those terms in the Loan Agreement.
TERMS AND CONDITIONS
For valuable consideration, including the mutual covenants set forth
below, Borrower and Lender have agreed as follows:
1. Section 1.17 of the Loan Agreement is amended to read as
follows:
"1.17 "Maximum Credit" shall mean the amount of
$11,500,000."
2. Section 3.5 of the Loan Agreement is amended in its entirety
to read as follows:
"3.5 Unused Line Fee. Borrower shall pay to Lender
monthly an unused line fee at a rate equal to one-quarter
percent (.25%) per annum calculated upon the amount by which
$9,200,000 exceeds the average daily principal balance of the
outstanding Revolving Loans and Letter of Credit
Accommodations during the immediately preceding month (or part
thereof) while this Agreement is in effect and for so long
thereafter as any of the Obligations are outstanding, which
fee shall be payable on the first day of each month in
arrears."
3. For the purpose of extending the term of the Loan Agreement,
Section 12.1(a) of the Agreement is hereby amended in its entirety to read as
follows:
"(a) This Agreement and the other Financing
Agreements shall become effective as of the date set forth on
the first page hereof and shall continue in full force and
effect for a term ending August 31, 1999 (the "Renewal Date"),
and from year to year thereafter, unless sooner terminated
pursuant to the terms hereof. Lender or Borrower may terminate
this Agreement and the other Financing Agreements effective on
the Renewal Date or on the anniversary of the Renewal Date in
any year by giving to the other party at least sixty (60)
days' prior written notice; provided, that, this Agreement and
all other Financing Agreements must be terminated
simultaneously. Upon the effective date of termination or
non-renewal of the Financing Agreements, Borrower shall pay to
Lender, in full, all outstanding and unpaid Obligations and
shall furnish cash collateral to Lender in such amounts as
Lender determines are reasonably necessary to secure Lender
from loss, cost, damage or expense, including attorneys'
fees and legal expenses, in connection with any contingent
Obligations, including issued and outstanding Letter of Credit
Accommodations and checks or other payments provisionally
credited to the Obligations and/or as to which Lender has not
yet received final and indefeasible payment. Such cash
collateral shall be remitted by wire transfer in federal funds
to such bank account of Lender as Lender may, in its
discretion, designate in writing to Borrower for such purpose.
Interest shall be due until and including the next business
day, if the amounts so paid by Borrower to the bank account
designated by Lender are received in such bank account later
than 12:00 noon, Pacific time."
4. Section 12.1(c) of the Agreement is amended in its entirety to
read as follows:
"(c) If for any reason this Agreement is terminated
prior to the end of the then current term or any renewal term,
in view of the impracticality and extreme difficulty of
ascertaining actual damages and by mutual agreement of the
parties as to a reasonable calculation of Lender's lost
profits as a result thereof, Borrower agrees to pay to Lender,
upon the effective date of such termination, an early
termination fee in the amount set forth below if such
termination is effective in the period indicated:
Amount Period
(i) 3% of Maximum Credit from the date hereof to and
including August 6, 1997
(ii) 1% of Maximum Credit any time after August 6, 1997
provided, however, that if this Agreement is terminated and
the Obligations satisfied in full after August 6, 1997 from
proceeds of new financing provided to Borrower by CoreStates
Bank, N.A., no early termination fee shall be payable. Such
early termination fee shall be presumed to be the amount of
damages sustained by Lender as a result of such early
termination, and Borrower agrees that it is reasonable under
the circumstances currently existing. The early termination
fee provided for in this Section 12.1 shall be deemed included
in the Obligations."
5. For the accommodations reflected in this Amendment, Borrower
agrees to pay Lender a fee in the sum of $35,000.
6. To induce Lender to accept this Amendment, Borrower makes the
following representations, warranties and covenants:
(a) Each and every recital, representation and warranty
contained in the Agreement is correct as of the date of this Amendment.
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(b) No event has occurred or is continuing which constitutes
or would, with the giving of notice, the passage of time, or both,
constitute an Event of Default under the Agreement.
(c) There has been no material adverse change in Borrower's
business or financial condition or prospects since the date of
Borrower's most recent audited annual financial statement furnished to
Lender.
(d) Borrower shall pay all expenses, including attorney fees,
with Lender incurs in connection with the preparation of this Amendment
and any related documents.
7. Except as specifically provided above, the Agreement and all related
agreements and documents shall remain fully valid, binding and enforceable
according to their terms.
BORROWER: PST VANS, INC.
By /s/
---------------------------------
Title Chief Financial Officer
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LENDER: CONGRESS FINANCIAL CORPORATION
(NORTHWEST)
By /s/
---------------------------------
Title Vice President
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