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EXHIBIT 10.48
AMENDMENT NO. 7 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 7, dated as of December 31, 1998, to the LOAN AND SECURITY
AGREEMENT, dated as of March 28, 1997, as amended by the FIRST AMENDMENT dated
as of April 10, 1997, the SECOND AMENDMENT dated as of July 1, 1997, the THIRD
AMENDMENT dated as of August 1, 1997, the FOURTH AMENDMENT dated as of November
22, 1997, the FIFTH AMENDMENT dated as of July 10, 1998 and the SIXTH
AMENDMENT, dated as of August 31, 1998 (as so amended, the "Loan and Security
Agreement"), between FOOTHILL CAPITAL CORPORATION, a California corporation,
with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, and XXXXXX TRAILERS, INC., a Delaware
corporation, with its chief executive offices located at 2727 Paces Ferry
Road, One Paces Ferry West, Suite 1700, Xxxxxxx, Xxxxxxx 00000.
Preamble
The Borrower has requested Foothill to amend the Loan and Security
Agreement to provide for a permitted overadvance in an amount not to exceed (i)
$2,000,000, through and including January 31, 1999, (ii) $1,500,000, from
February 1, 1999 through and including February 28, 1999, and (iii) $1,000,000,
from March 1, 1999 through and including March 31, 1999. Accordingly, the
Borrower and Foothill hereby agree as follows:
1. Definitions. All terms used herein which are defined in the Loan and
Security Agreement and not otherwise defined herein are used herein as defined
therein.
2. Definition of Overadvance Amount. The definition of the term
"Overadvance Amount" in Section 1.1 of the Loan and Security Agreement is hereby
amended in its entirety to read as follows:
"Overadvance Amount" means (i) $2,000,000, from September 1, 1998
through and including January 31, 1999, (ii) $1,500,000, from February 1, 1999
through and including February 28, 1999, (iii) $1,000,000, from March 1, 1999
through and including March 31, 1999, and (iv) $0.00, after March 31, 1999."
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3. Section 2.10(g) of the Loan and Security Agreement. Section 2.10(g)
of the Loan and Security Agreement is hereby amended in its entirety to read as
follows:
"(g) Overadvance Fee. (i) On each of February 1, 1999, March 1, 1999
and April 1, 1999, the Borrower will pay to Foothill a monthly fee equal
to the greater of (A) $15,000 and (B) the product of (y) $1,000 and (z)
the aggregate number of days during the immediately previous calendar
month in which an Overadvance existed or would have existed if the
Overadvance Amount was zero as of such date.
(ii) If, an Overadvance exists, at the election of Foothill, the
Borrower will pay Foothill a fee equal $1,000 per day for each day that an
Overadvance exists."
4. Section 7.20(c) of the Loan and Security Agreement. Section 7.20(c)
of the Loan and Security Agreement is hereby amended in its entirety to read as
follows.
"(c) EBTDA. EBTDA for each period of two consecutive preceding months
on the date set forth below of at least the amount set forth opposite such
date:
Two Months Period Ending EBTDA
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December 31, 1998 $500,000
February 28, 1999 $300,000
5. Conditions. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the
"Effective Date"):
(a) The representations and warranties contained in this Amendment and in
Section 5 of the Loan and Security Agreement and each other Loan Document shall
be correct on and as of the Effective Date as though made on and as of such date
(except where such representations and warranties relate to an earlier date in
which case such representations and warranties shall be true and correct as of
such earlier date); no Default or Event of default shall have occurred and be
continuing on the Effective Date or result from this Amendment becoming
effective in accordance with its terms.
(b) Foothill shall have received a counterpart of this Amendment, duly
executed by the Borrower.
(c) All legal matters incident to this Amendment shall be satisfactory
to Foothill and its counsel.
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6. Representations and Warranties. The Borrower hereby represents and
warrants to Foothill as follows:
(a) The Borrower (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) has all
requisite corporate power, authority and legal right to execute, deliver and
perform this Amendment, and to perform the Loan and Security Agreement, as
amended hereby.
(b) The execution, delivery and performance of this Amendment by the
Borrower, and the performance by the Borrower of the Loan and Security
Agreement, as amended hereby (i) have been duly authorized by all necessary
corporate action, (ii) do not and will not contravene its charter or by-laws or
any applicable law, and (iii) except as provided in the Loan Documents, do not
and will not result in the creation of any Lien upon or with respect to any of
its respective properties.
(c) This Amendment and the Loan and Security Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms.
(d) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required in connection with the due
execution, delivery and performance by the Borrower of this Amendment and the
performance by the Borrower of the Loan and Security Agreement as amended
hereby.
(e) The representations and warranties contained in Section 7 of the
Loan and Security Agreement and each other Loan Document are correct on and as
of the Effective Date as though made on and as of the Effective Date (except to
the extent such representations and warranties expressly relate to an earlier
date in which case such representations and warranties shall be true and
correct as of such earlier date), and no Default or Event of Default has
occurred and is continuing on and as of the Effective Date or will result from
this Amendment becoming effective in accordance with its terms.
7. Continued Effectiveness of the Loan and Security Agreement and Loan
Documents. The Borrower hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Effective Date of this Amendment all references in any such Loan Document to
"the Loan and Security Agreement", the "Agreement" "thereto", "thereof"
"thereunder" or words of like import referring to the Loan and Security
Agreement shall mean the Loan and Security Agreement as amended by this
Amendment; and (ii) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to Foothill, or to grant a security
interest in or Lien on, any collateral as security for the obligations of the
Borrower from time to time existing in respect of the Loan and Security
Agreement and the Loan Documents, such pledge, assignment and/or grant of the
security interest or Lien is hereby ratified and confirmed in all respects.
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8. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
(b) Section and paragraph headings herein are included for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose.
(c) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of California.
(d) The Borrower will pay on demand all reasonable fees, costs and
expenses of Foothill in connection with the preparation, execution and delivery
of this Amendment including, without limitation, reasonable fees disbursements
and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to Foothill.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered.
XXXXXX TRAILERS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice-President - Finance
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
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