Exhibit 10(p)
December 20, 2000
Mr. William P. Ward, President
OTR Express, Inc.
804 N. Meadowbrook Drive
Olathe, Kansas 66063-0819
Re: Restructuring of Indebtedness
Dear Mr. Ward,
This letter is in response to recent discussions between
representatives of OTR Express, Inc. ("OTR") and Navistar Financial
Corporation ("NFC"). OTR has indicated to NFC that it has temporary
short-term cash flow difficulties and as such needs to restructure its
debt obligations with NFC.
Reference is made to those certain Commercial Loan and Security
Agreements of various dates by and between NFC and OTR a list of which
is attached to this letter as Schedule A. All of the foregoing
Commercial Loan and Security Agreements are collectively hereinafter
referred to as the "Loan Agreements". Capitalized terms used herein
without definition will have the meaning ascribed to them in the Loan
Agreements. Each Loan Agreement provides that each payment is due on
and by the date specified in each Loan Agreement and on the same day of
each month thereafter with past due interest accrued from the due date
of each payment if such payment is not received by NFC within ten days
of each due date.
As of the date of this letter, OTR is delinquent on portions of its
scheduled Loan Agreement payments with NFC.
In order to accommodate OTR's short term financing needs, NFC and OTR
have agreed to modify the terms of the Loan Agreements as follows:
PAYMENT AMENDMENTS
1. Effective October 1, 2000 through and including March 31, 2001 OTR
shall pay to NFC interest on the aggregate outstanding principal
indebtedness due and owing NFC as of September 30, 2000 on the dates
and in the amounts as shown on the Attached Schedule B.
2. Effective October 1, 2000 through and including March 31, 2001 OTR
shall pay to NFC principal on the aggregate outstanding principal
indebtedness due and owing NFC as of September 30, 2000 on the dates
and in the amounts as shown on the Attached Schedule B.
3. Effective April 1, 2001, through the scheduled final payment dates
on all of the Loan Agreements, OTR shall pay to NFC the payments in the
amounts and on the dates as shown on Attached Schedule B.
RETURN OF EQUIPMENT
OTR shall return a minimum of ten pieces of equipment per month to NFC,
which shall be tractors financed with NFC (and not trailers), at a
location provided by NFC to OTR in writing. Such ten tractors per
month shall be returned to NFC no later than the last business day of
January, 2001, February, 2001 March, 2001, April, 2001, May, 2001,
June, 2001, July, 2001 and August, 2001. If at any time NFC is in
possession of 50 or more units that have not been sold, OTR may delay
the return of additional tractors until such time as NFC sells tractors
and the number of tractors NFC is in possession of drops below 50.
To the extent that NFC sells any Equipment, NFC will credit the net
proceeds received by NFC from the sale of such vehicle to the related
Loan Agreement. To the extent that the net proceeds paid to NFC from
the sale of any piece of Equipment exceeds the amount owed to NFC by
OTR on the related Loan Agreement, OTR authorizes NFC to apply the
surplus to the remaining indebtedness owed by OTR to NFC at NFC's
discretion. To the extent the net proceeds paid to NFC from the sale
of any piece of Equipment is less than the amount owed to NFC by OTR on
the related Loan Agreement, such deficiency shall be shown on a
deficiency note in the form as attached hereto as Exhibit C and paid to
NFC as follows: Interest only on the outstanding principal until April
30, 2001 with the principal balance amortized over forty eight months
along with interest.
REMARKETING ASSISTANCE
With respect to any vehicle that is to be returned by OTR to NFC, OTR
shall, in advance of the actual return of the vehicle to NFC:
1. Identify the vehicle by VIN number,
2. Perform such necessary repairs to the vehicle to bring it back to
terms and conditions mutually agreed upon by OTR and NFC.
3. If OTR has a potential buyer for the vehicle to be returned, inform
NFC of all of the terms and conditions of the sale and receive NFC's
written consent to the sale. All proceeds from the sale shall be
immediately delivered to NFC and if not immediately delivered held in
trust by OTR for NFC's benefit.
PHYSICAL DAMAGE INSURANCE
OTR shall be required to provide a physical damage insurance policy on
all of the Equipment. Such insurance company shall have an A.M. Best
rating of B+ or better. Such physical damage insurance shall insure the
Equipment against loss by fire, theft and collision for the entire
period of the Loan Agreements as amended by this Agreement. Such
insurance policy shall have a per unit deductible no greater than
$50,000. NFC shall be named as loss payee on such insurance policy.
NFC, in its sole discretion may apply any proceeds received by it to
any indebtedness owed by OTR to NFC. OTR agrees to place $20,000 per
month for five months, beginning on January 1, 2001, into an escrow
account for the benefit of OTR's Equipment Lenders to cover the cost
(i.e., the deductible) of vehicular accidents in which the amount of
physical damage to vehicles owned by OTR exceeds $10,000. OTR agrees
to replenish the account so that it maintains a $100,000 balance in the
account at all times after May 1, 2001.
COVENANTS
In consideration of the amendments made to the Loan Agreements as
provided for in this Agreement, unless the prior written approval of
NFC shall have been first obtained:
(a) OTR shall not make any distribution of capital or earnings
or declare or distribute any dividends on its shares of
stock;
(b) OTR shall make no loans or other advances to its
shareholders, officers, employees, or any other person or
party, nor shall OTR make any loans to or investments in
any other business or firm, whether related or unrelated to
OTR, nor will OTR make any advance payment, other than in
the normal course of business, for goods or services to be
received at a later date. No rent payable to an affiliate
or insider shall be increased so long as any amount remains
outstanding hereunder. OTR shall not guarantee in whole or
in part, directly or indirectly, any obligations of any
person, business, or organization, except with respect to
the retail financing of sales in the ordinary course of
business. OTR may continue to make principal payments to
Steve Ruben in order for Mr. Ruben to repay his stock loan,
which has a principal balance of $30,000 as of December 10,
2000;
(c) Except where required by the terms of a collective
bargaining agreement or any other employment agreement
which pre-dates this Agreement, OTR shall not increase the
salaries, fees or bonuses of OTR's executive officers or
directors while any amount remains outstanding hereunder;
(d) OTR shall not acquire all or any portion of the assets of
any other entity if such acquisition would thereupon
represent a substantial portion of OTR's assets;
(e) OTR shall not, directly or indirectly, retire any debt or
make any prepayment of any debt except as permitted or
required under this Agreement or according to the terms of
such other debt;
(f) OTR shall deliver to NFC as soon as available, and in any
event within ninety days after the end of OTR's fiscal
year, a complete reviewed financial statement for OTRs
business. In addition, OTR shall furnish to NFC on or
before the 25th day of each calendar month a monthly
balance sheet, operating statement, and an accounts
receivable aging analysis for OTR's business for the
previous calendar month.
COVENANTS
1. OTR shall provide to NFC internally generated monthly cash flows,
monthly balance sheets, income statements and aging receivable
reports within 25 days after the end of each month.
2. OTR shall provide to NFC annual audited financial statements no
later than 90 days after the end of OTR's fiscal year end.
3. OTR shall provide to NFC quarterly unaudited financial statements
within 45 days after the end of each of OTR's fiscal quarters.
4.OTR shall maintain all of the Equipment in accordance with the
vehicle manufacturers current recommended practices and procedures.
5. OTR shall notify NFC of any significant damage, theft or destruction
of any of the Equipment no later than 5 business days after becoming
aware of the same.
6. OTR shall provide NFC with financial projections of the company for
FY 2001 no later than January 31, 2001. In addition, OTR shall provide
NFC within 30 days after each month end, actual financial results
compared to the projections given to NFC, accounting for any
significant changes or deviations from the actual financial results to
said projections.
7. OTR acknowledges that each Loan Agreement provides that the
Equipment securing each individual Loan Agreement also secures all
other indebtedness due and owing NFC by OTR. OTR acknowledges that NFC
will maintain its security interest in all the Equipment for all
indebtedness due and owing NFC by OTR.
8. OTR acknowledges that NFC shall have the right to periodically
review and inspect the Equipment. OTR agrees to fully cooperate with
NFC in making the Equipment available in order to effectuate such
review and inspection by NFC.
ADDITIONAL SECURITY
In consideration of NFC amending the payment terms of the Loan
Agreements, as provided for in this Agreement, OTR shall grant to NFC
and the other lenders described in the Conditions Precedent section
below, (the "Other Lenders") on a ratable basis, in accordance with
inter-creditor agreements in place by and among NFC and the Other
Lenders, a lien on OTR's owned real estate located in Olathe, Kansas.
NFC understands that OTR's owned real estate assets located in Olathe,
Kansas will be subject to the prior liens of Hillcrest Bank
("Hillcrest") and Toni Waggoner ("Waggoner"). Other than Hillcrest's
lien and Waggoner's lien as described herein, OTR represents and
warrants that, to the best of its' knowledge, no other prior liens
exist with respect to the real estate assets pledged.
Contemporaneously with OTR entering into this agreement OTR will enter
into such security agreements, financing statements and or real estate
mortgages/deeds of trust and other documentation as NFC and the Other
Lenders deem appropriate.
PREPAYMENTS
OTR will be required to make mandatory prepayments to NFC and the Other
Lenders when OTR's availability under its working capital line with
HSBC exceeds an average of $700,000 over a (10) ten-day period. Such
prepayment would be paid by OTR within 10 days of month end. OTR will
pay an amount equal to 100% of the average availability on said working
capital line in excess of $700,000 over a ten business day period. NFC
and the Other Lenders would share in any prepayments on a pro rata
basis in accordance with any agreement made by and between NFC and the
Other Lenders.
CONDITIONS PRECEDENT
Prior to this Agreement becoming effective OTR must obtain NFC's
written consent and approval to the terms, provisions and conditions of
the agreements entered into between OTR and PACCAR Financial Corp., OTR
and The Associates Commercial Corp. and OTR and Mercedes Benz Credit
Corporation. The terms of OTR's agreement with the Other Lender's must
be, in the sole opinion of NFC, substantially similar to the terms
contained in this Agreement.
MISCELLANEOUS
Time is of the essence in this Agreement.
All parties to this Agreement waive all rights to trial by jury in any
action or proceeding which pertains directly or indirectly to this
Agreement, or any of the Loan Agreements.
OTR agrees that this Agreement shall be governed and controlled by the
internal laws of the State of Illinois as to interpretation,
enforcement, validity, construction and effect.
Unless amended all other terms and conditions of Loan Agreement remain
in effect.
Navistar Financial Corporation
By: /s/ Richard Curtiss
Title: Operations Manager
Date: 1/11/01
Accepted and Agreed to: OTR Express, Inc.
Signed: /s/ William P. Ward /s/ Steven W. Ruben
Title: President CFO
Date: 12/27/00 12/28/00