TENTH AMENDMENT TO REVOLVING
LOAN AGREEMENT
This Tenth Amendment to Revolving Loan Agreement (the "Amendment") is
entered into as of the 31st day of December, 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, including the prior nine amendments
to 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, as modified, including the Ninth Amendment To Revolving Loan
Agreement, with respect to the Termination Date under the Loan Agreement.
C. Since March 1, 1998, Bank has incurred and is incurring legal
expenses and costs in the amount of $900.00 in connection with the Loan
Documents and negotiating and documenting this Tenth 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. Termination Date. The Termination Date under the Loan Agreement
shall be May 15, 1998 (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. An
undrawn letter of credit shall be deemed to remain outstanding if the letter of
credit has not expired and has not been returned by the beneficiary accompanied
by a letter from the beneficiary stating that Bank is released and has no
further obligations under the letter of credit.
2. Extension Fees. In addition to other charges, fees and payments
payable under the Loan Agreement, Borrower shall pay to the Bank on or before
April 3, 1998 an extension fee of $25,000.00, and if the letter of credit
remains outstanding as of the following dates shall pay additional extension
fees of $15,000.00 each on April 17, 1998, May 1, 1998 and May 15, 1998,
respectively.
3. Payment of Attorneys' Fees and Costs. Contemporaneously with the
delivery of this Tenth 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 $900.00.
4. No Obligation to Enter into Additional Amendments. Borrower agrees
and acknowledges that this Tenth 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.
5. 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.
6. Incorporation by Reference. The entire Loan Agreement and any prior
written amendments (the "Prior Amendments") 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 Amendments 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.
7. 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 Documents, 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 Documents, including the Loan
Agreement or the Note.
8. Integration. The incorporation herein of the Loan Agreement and the
Prior Amendments 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 Amendments 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
Documents. No prior oral understanding or agreement contradictory to the terms
of this Amendment and the integrated Loan Agreement survives the execution
hereof.
9. 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.
10. Counterparts. This Tenth 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 Tenth 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:
---------------------------- -------------------------------
