Exhibit 10(w)
AMENDMENT NO. 4
TO LOAN AND SECURITY AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
The Loan and Security dated June 11, 1997, between OTR Express Inc., as
Debtor, and HSBC BUSINESS LOANS, 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 requested that Secured Party amend the Loan
Agreement and the other Transaction Documents by amending the Tangible Net
Worth covenant contained in Item 30(a) of the Schedule to the Loan Agreement;
and
B. Secured Party is willing to agree to the requested
amendment, but only if Debtor executed and delivers this Amendment to Secured
Party.
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual covenants of the parties, the party 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 respect:
Item 30(a) of the Schedule to the Loan Agreement is hereby deleted
and the following is inserted in place thereof:
(a) Minimum Tangible Net Worth: Debtor shall maintain a
minimum Tangible Net Worth in the amounts set forth below
for the time periods set forth below:
Amount Time Period
$8,175,000.00 3/31/00
$8,000,000.00 6/30/00
$8,000,000.00 9/30/00
$8,100,000.00 12/31/00 and thereafter
"Tangible Net Worth" means the sum of stockholders' equity plus
the principal balance of any debt that is subordinated to the
Indebtedness in a manner satisfactory to Secured Party, minus the
book value of Intangible Assets (as defined below), all determined
in accordance with generally accepted accounting principles
consistently applied.
"Intangible Assets" means (1) all loans or advances to, and other
receivables owing from, any employee of Affiliate, other than
advances of expenses to drivers in the ordinary course of business
not to exceed $400,000.00 in the aggregate outstanding at any one
time, (2) all investments, whether in a subsidiary or otherwise,
(3) goodwill, (4) any other assets deemed intangible under
generally accepted accounting principles, and (5) any other assets
determined intangibleby Secured Party in its reasonable credit
judgment.
The foregoing Tangible Net Worth covenant shall be tested for
compliance at the end of each calendar quarter."
3. 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 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. 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 this 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 such agreement other than those
which have been waived by the non-defaulting party or satisfied Debtor.
4. 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.
5. Debtor agrees that it has no defenses, setoffs or counterclaims to
Secured Party's enforcement of its rights and remedies under the Loan
Agreement and the other Transaction Documents.
6. Capitalized terms used in this Amendment shall have the same
meanings as specified in the Loan Agreement, except as otherwise expressly
provided herein.
7. 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.
8. 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
FROMMISUNDERSTANDING 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. 4 to Loan and Security Agreement
and Other Transaction Documents (the "Amendment") has been executed by the
parties as of the 28th day of April, 2000.
DEBTOR:
By: /s/ William P. Ward
William P Ward
President and Chief Executive Officer
By: /s/ Steven W. Ruben
Steven W. Ruben
Vice President and Chief
Financial Officer
SECURED PARTY:
HSBC BUSINESS LOANS, INC.
By: /s/ M. Catherine Draper
M. Catherine Draper
Vice President