1
Exhibit 10.42
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1, dated as of April 10, 1997, to the LOAN AND SECURITY
AGREEMENT (the "Loan and Security Agreement") dated as of March 28, 1997,
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.
The parties agree as follows:
A. Definitions in Amendment. Any capitalized term used herein and
not defined shall have the meaning assigned to it in the Loan and Security
Agreement.
B. Eligible Accounts. Section (h) of the definition of the term
"Eligible Accounts" in Section 1.1 of the Loan and Security Agreement is hereby
amended in its entirety to read as follows:
"(h) Accounts with respect to an Account Debtor, whose total
obligations owing to Borrower exceed 20% of all Eligible Accounts (other than
(i) prior to June 30, 1997, Accounts with respect to which XTRA Corporation is
the Account Debtor where the total obligations arising by XTRA Corporation to
Borrower do not exceed 60% of all Eligible Accounts, and (ii) prior to November
1, 1997, Accounts with respect to which the Account Debtor is United Parcel
Service, Inc.), to the extent of the obligations owing by such Account Debtor in
excess of such percentages, provided that, upon the request of Borrower,
Foothill may waive or increase the limitation if in its reasonable credit
judgment, the Account Debtor is considered credit worthy, such waiver and/or
increase by Foothill not to be unreasonably withheld or delayed;"
C. Miscellaneous.
(a) Continued Effectiveness of the Loan and Security Agreement.
Except as otherwise expressly provided herein, the Loan and Security Agreement
and the other Loan Documents are, and shall continue to be, in full force and
effect and are hereby ratified and confirmed in all respects.
(b) Counterparts. 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.
2
(c) Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(d) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of California.
(e) Costs and Expenses. The Borrower agrees to pay on demand
all reasonable fees, costs and expenses of Foothill (including, without
limitation, the fees and other client charges of Xxxxxxx Xxxx & Xxxxx LLP,
special counsel to Foothill) in connection with the preparation, execution and
delivery of this Amendment and the other related agreements, instruments and
documents.
(f) Amendment as Loan Document. The Borrower hereby
acknowledges and agrees that this Amendment constitutes a "Loan Document" under
the Loan and Security Agreement. Accordingly, it shall be an Event of Default
under the Loan and Security Agreement if the Borrower shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(g) Waiver of Jury Trial. THE BORROWER AND FOOTHILL EACH
HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BORROWER OR FOOTHILL IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered.
FOOTHILL CAPITAL CORPORATION, a
California corporation
By: /s/ Xxxxxxx Xxxx
-----------------
Name: Xxxxxxx Xxxx
------------
Title: Assistant Vice President
------------------------
XXXXXX TRAILERS, INC., a Delaware
corporation
By: /s/ T. Xxxxxxx Xxxxxxxx
-----------------------
Name: T. Xxxxxxx Xxxxxxxx
-------------------
Title: Vice President-Finance
----------------------
-2-
