AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
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Exhibit 10(R)
EXECUTION COPY
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of April. 6, 2004, is made and entered into by and among XXXXX FARGO FOOTHILL, INC., a California corporation ("Lender"), XXXX XXXXXX, INC., a Delaware corporation ("Parent"), and XXXX XXXXXX REALTY CORP., a California corporation ("ES Realty") (Parent and ES Realty are referred to hereinafter collectively, jointly and severally, as the "Borrower"). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in that certain Loan and Security Agreement entered into as of August 4, 2003 between Lender and Borrower (the "Original Agreement"), as amended as of August 29, 2003 (the "First Amendment") and February 19, 2004 (the "Second Amendment").
WHEREAS, Lender and Borrower desire to enter into this Amendment to amend the Original Agreement as set forth herein, all in accordance with Sections 15 and 16.6 of the Original Agreement
NOW, THEREFORE, in consideration, of the foregoing and of the mutual promises contained herein and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lender and Borrower hereby amend the Original Agreement as follows:
1. Minimum EBITDA. Section 7.15(a)(i) of the Original Agreement and Section 1 of the Second Amendment shall be deleted and replaced by the following:
(i) Minimum EBITDA. EBITDA, measured on, a quarter-end basis, of at least the required amount set forth in the following table for the applicable period set forth opposite thereto:
| Applicable Amount |
Applicable Period |
|
|---|---|---|
| $(50,000) | For the quarter ending July 31, 2003 | |
$(200,000) |
For the quarter ending October 31, 2003 |
|
$(1,450,000) |
For the quarter ending January 31, 2004 |
|
$50,000 |
For the quarter ending April 30, 2004 |
|
$50,000 |
For the quarter ending July 31, 2004 |
|
$150,000 |
For the quarter ending October 31, 2004 |
|
($1,350,000) |
For the quarter ending January 31, 2005 |
|
$0 |
For the quarter ending April 30, 2005 |
|
To be determined by Lender in its sole discretion upon receipt of the Projections for the forthcoming fiscal year in accordance with Section 6.3(c) |
For each subsequent quarter thereafter |
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2. Tangible Net Worth. Section 7.15(a)(ii) of the Original Agreement shall be deleted and replaced by the following:
(ii) Tangible Net Worth. Tangible Net Worth of at least the required amount set forth in the following table, measured as of the applicable date set forth opposite thereto:
| Applicable Amount |
Applicable Period |
|
|---|---|---|
| $5,900,000 | July 31, 2003 | |
$5,200,000 |
October 31, 2003 |
|
$3,900,000 |
January 31, 2004 |
|
$3,500,000 |
April 30, 2004 |
|
$3,500,000 |
July 31, 2004 |
|
$3,500,000 |
October 31, 2004 |
|
$3,300,000 |
January 31, 2005 |
|
$3,000,000 |
April 30, 2005 |
|
To be determined by Lender in its sole discretion upon receipt of the Projections for the forthcoming fiscal year in accordance with Section 6.3(c) |
For each subsequent quarter thereafter |
3. Reference to and Effect Upon the Amended Original Agreement. All of the provisions of this Amendment shall be deemed to be incorporated in, and made a part of, the Original Agreement, the First Amendment and the Second Amendment; and the Original Agreement, as supplemented and amended by the First Amendment, the Second Amendment and this Amendment, shall be read, taken and construed as one and the same agreement. Except as expressly modified herein, the Original Agreement, the First Amendment and the Second Amendment shall remain in full force and effect and are hereby ratified.
4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
5. Counterparts. This Amendment may be executed in any number of counterparts, or facsimile counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
6. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience and are not to be considered in construing or interpreting this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the day and year first written above.
BORROWER |
LENDER |
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XXXX XXXXXX, INC., a Delaware Corporation |
XXXXX FARGO FOOTHILL, INC., a California corporation |
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| By: | /s/ XXXXXXX X. XXXXXXXXX |
By: | /s/ XXX XXXXXX |
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| Title: | Chief Financial Officer |
Title: | Vice President |
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| XXXX XXXXXX REALTY CORP., a California corporation |
||||||
| By: | /s/ XXXXXXX X. XXXXXXXXX |
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| Title: | Chief Financial Officer |
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AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
