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EXHIBIT 10.49
AMENDMENT NO. 8 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 8, dated as of May 7, 1999, 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, the SIXTH AMENDMENT,
dated as of August 31, 1998, and the SEVENTH AMENDMENT, dated as of December 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 repaid in full the original term loan made by Foothill
to the Borrower on the Closing Date in the original principal amount $4,000,000.
The Borrower has requested Foothill to amend the Loan and Security
Agreement to provide for a new term loan in the original principal amount of
$200,000 with a final maturity date of December 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. Term Loan. Section 2.3 of the Loan and Security Agreement is hereby
amended in its entirety to read as follows:
"Foothill has agreed to make a term loan (the "Term Loan") to
Borrower on or about May 7, 1999 in the original principal amount of
$200,000. The Term Loan shall be repaid in eight (8) installments of
payment in the following amounts:
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Date Installment Amount
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June 1, 1999 $20,000
July 1, 1999 $20,000
August 1, 1999 $20,000
September 1, 1999 $20,000
October 1, 1999 $20,000
November 1, 1999 $20,000
December 1, 1999 $20,000
December 31, 1999 $60,000
The outstanding principal balance and all accrued and unpaid
interest under the Term Loan shall be due and payable upon the
termination of this Agreement, whether by its terms, by prepayment, by
acceleration, or otherwise. The unpaid principal balance of the Term
Loan may be prepaid in whole or in part without penalty or premium at
any time during the term of this Agreement upon ten (10) days prior
written notice by Borrower to Foothill, all such prepaid amounts to be
applied to the installments due on the Term Loan in the inverse order
of their maturity. All amounts outstanding under the Term Loan shall
constitute Obligations."
4. Interest Rate. Section 2.5(a) of the Loan and Security Agreement
is hereby amended in its entirety to read as follows:
"(a) Interest Rate. Except as provided in clause (b) below,
all obligations (except for undrawn letters of Credit) shall bear
interest at a per annum rate of 2.0 percentage points above the
Reference Rate."
5. Repurchase of Used Trailer Inventory. Section 7.24 of the Loan
and Security Agreement is hereby amended in its entirety to read as follows:
"7.24 REPURCHASE OF USED TRAILER INVENTORY. Repurchase any
Used Trailer Inventory from TYM, Inc. or any other entity controlled
by Xxxxxxx X. Xxxxx unless (i) such repurchase occurs after August 1,
1997, (ii) the price paid by Borrower for such Used Trailer Inventory
is not greater than the price paid to Borrower when Borrower sold such
Used Trailer Inventory to TYM, Inc. or such other entity, and (iii)
both before and after the giving effect to such repurchase, no Default
or Event of Default has occurred and is continuing and Availability is
not less than $4,000,000."
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6. 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 have paid Foothill a non-refundable amendment
fee of $5,000, which fee is earned in full on the date hereof.
(d) All legal matters incident to this Amendment shall be
satisfactory to Foothill and its counsel.
7. 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.
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(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.
8. 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; (ii) confirms that the term loan in the original principal
amount of $200,000 made by Foothill to the Borrower on or about the Effective
Date constitutes an "Obligation" pursuant to the Loan and Security Agreement;
and (iii) 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.
9. 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: C.F.O.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
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