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EXHIBIT 10.47
AMENDMENT NO. 6 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 6, dated as of August 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 and the FIFTH AMENDMENT dated as of July 10, 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 an overadvance not to exceed $2,000,000 through and
including December 31, 1998. 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. Section 1.1 of the Loan and Security Agreement. Section 1.1 of
the Loan and Security Agreement is hereby amended and restated as follows:
(a) EBTDA. The definition of "EBTDA" is hereby added to read as
follows:
"EBTDA" shall mean, with respect to any fiscal period of
Borrower, an amount equal to the sum for such fiscal period of (i)
Net Income, plus (ii) provision for taxes based on income, plus
(iii) depreciation, amortization and other non-cash charges."
(b) Overadvance Amount. The definition of the term "Overadvance
Amount" is hereby amended in its entirety to read as follows:
"Overadvance Amount" means (i) $2,000,000, from September 1,
1998 through and including December 31, 1998, and (ii) $0.00, after
December 31, 1998; provided, however, if at any time the Borrower
shall hold less than 180
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units of Designated Work In Process Trailer Inventory, Foothill may
in its sole discretion reduce the Overadvance Amount in whole or in
part."
3. Section 2.10 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. The Borrower shall pay to Foothill a
non-refundable fee of $30,000 on October 1, 1998, November 1, 1998,
and December 1, 1998, which fee is earned in full on the date of
each respective payment thereof. If, on any day after December 31,
1998, 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 of the Loan and Security Agreement. Section 7.20 of
the Loan and Security Agreement is hereby amended by adding the
following Subsection (c) to the end of Section 7.20.
(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 Month Period Ending EBTDA
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October 31, 1998 $600,000
December 31, 1998 $750,000
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) The Borrower shall pay to Foothill a non-refundable fee of
$30,000, which fee is earned in full on the date hereof.
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(d) All legal matters incident to this Amendment shall be
satisfactory to Foothill and its counsel.
5. 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.
6. 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
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the Loan Documents, such pledge, assignment and/or grant of the security
interest or Lien is hereby ratified and confirmed in all respects.
7. 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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Title: Vice President - Finance
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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