EXHIBIT 10.11
SECOND AMENDMENT TO
REVOLVING LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO REVOLVING LOAN AND SECURITY AGREEMENT is
entered into as of November 26, 2002 (this "Amendment") by and between COMERICA
BANK-CALIFORNIA ("Bank"), a California banking corporation and XXXX, XXXXXX &
ASSOCIATES, INC., a Delaware corporation ("Borrower").
RECITALS
WHEREAS, Borrower and Bank have previously entered into that certain
Revolving Loan and Security Agreement dated June 21, 2002 (as amended, the "Loan
Agreement"); and
WHEREAS, Borrower is requesting modifications to certain financial
covenants, and Bank has agreed to modify certain financial covenants pursuant to
certain terms and conditions, as set forth more completely herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Incorporation by Reference; Definitions. The foregoing Loan
Agreement and the Recitals are incorporated herein by this reference as
though set forth in full herein. Any term not defined herein shall have the
meaning given in the Loan Agreement.
2. Amendment to the Loan Agreement. The Loan Agreement is hereby
modified as set forth below.
2.1 Amendment to Section 9.2 of the Loan Agreement. Section 9.2 of the
Loan Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
9.2 Minimum Effective Tangible Net Worth. Borrower
shall maintain, commencing as of December 31, 2002, and on the
last day of each fiscal quarter of Borrower thereafter,
Effective Tangible Net Worth of at least Twenty Three Million
and 00/100 Dollars ($23,000,000.00); provided, however that
such amount shall increase, on a cumulative basis, by an
amount equal to eighty
percent (80%) of net income after taxes in the
trailing four (4) fiscal quarter period (with no deduction for
losses).
2.2 Amendment to Section 9.6 of the Loan Agreement. Section 9.6 of the
Loan Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
9.6 Cash Balances. Borrower and its Subsidiaries
shall maintain a minimum aggregate cash balance with Bank of
Twelve Million and 00/100 Dollars ($12,000,000.00); provided,
however that so long as there is no Event of Default and
Borrower achieves an Effective Tangible Net Worth of at least
Twenty Four Million and 00/100 Dollars ($24,000,000.00) for
two consecutive quarters, then Borrower and its Subsidiaries
shall maintain a minimum aggregate cash balance with Bank of
Ten Million and 00/100 Dollars ($10,000,000.00)."
3. Conditions Precedent. Bank's consent to this Amendment is subject
to satisfaction of all of the conditions set forth below.
3.1 payment by Borrower of Bank's attorneys' fees and costs incurred
in the preparation of this Amendment and the documents executed pursuant
thereto; and
3.2 payment by Borrower of an amendment fee in the amount of One
Thousand and 00/100 Dollars ($1,000.00).
4. No Amendment of Other Obligations; No Effect on Collateral. Except
as is otherwise specifically set forth herein or in any document executed
in connection herewith, the Loan Agreement and the Loan Documents are and
shall remain unmodified and in full force and effect. Borrower ratifies and
reaffirms the Obligations, without setoff, defense, or counterclaim, and
agrees fully and faithfully to pay, perform and discharge, as and when
payment, performance and discharge are due, all of the Obligations under
the Loan Agreement, as amended hereby. Nothing herein shall be deemed to
affect in anyway the Collateral that secures the obligations under the Loan
Agreement (as modified by this Amendment) or under any other agreement now
or in the future.
5. Conflicts. If any conflict exists between the provisions of the
Loan Documents and the provisions of this Amendment, the provisions of this
Amendment shall control.
6. Ratification of the Guaranties and Security Therefor. By executing
this Amendment below where indicated, Guarantors acknowledge and
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agree that they have read and are familiar with, and consent to, all of the
terms and conditions of this Amendment. In light of the foregoing, by executing
this Amendment, Guarantors further confirm and agree that all of the terms and
provisions of the Guaranty and the Guarantor Security Agreement are ratified and
reaffirmed, and that the Guaranty and Guarantor Security Agreement shall and
does continue in full force and effect. Although Bank has informed Guarantors of
the terms of this Amendment, Guarantors understand and agree that Bank has no
duty whatsoever to do so, nor to seek this or any future acknowledgment,
consent, or reaffirmation, and that nothing contained herein is intended to, or
shall create, such a duty on the part of Bank as to any transactions hereafter.
7. Further Assurances. Borrower agrees to make and execute such other
documents and/or take such other action and/or provide such further
assurances as may be requested by Bank in connection with the Obligations
or as may be necessary or required to effectuate the terms and conditions
of this Amendment and any documents executed in connection herewith.
8. Future Amendments. Neither this Amendment nor any document executed
herein entitles, or implies any consent or agreement to, any further or
future modification of, amendment to, waiver of, or consent with respect to
any provision of the Amendment or the Loan Documents. Any modifications
hereto or to the Loan Documents shall be in writing and signed by the
parties.
9. Integration. This Amendment and any documents executed in
connection herewith are integrated agreements, and supersede all
negotiations and agreements regarding the subject matter hereof and
thereof, and taken together with the Loan Documents and any documents
executed in connection herewith, constitute the final agreement of the
parties with respect to the subject matter hereof and thereof.
10. Severability. In the event any one or more of the provisions
contained in this Amendment is held to be invalid, illegal or unenforceable
in any respect, then such provision shall be ineffective only to the extent
of such prohibition or invalidity, and the validity, legality, and
enforceability of the remaining provisions contained herein shall not in
any way be affected or impaired thereby.
11. Interpretation. This Amendment and all agreements relating to the
subject matter hereof are the product of negotiation and preparation by and
among each party and its respective attorneys, and shall be construed
accordingly. The parties waive the provisions of California Civil Code
ss.1654.
12. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if all signatures were upon the same instrument. Delivery of an executed
counterpart of the signature page to this Amendment by telefacsimile shall
be effective as delivery of a manually executed counterpart of this
Amendment, and any party
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delivering such an executed counterpart of the signature page to this Amendment
by telefacsimile to any other party shall thereafter also promptly deliver a
manually executed counterpart of this Amendment to such other party, provided
that the failure to deliver such manually executed counterpart shall not affect
the validity, enforceability, or binding effect of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Revolving Loan and Security Agreement to be executed as of the date
first above written.
XXXX, XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxx Xxxxxx
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Title: Treasurer
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COMERICA BANK - CALIFORNIA
/s/ Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx
Its: Assistant Vice President
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ACCEPTED AND AGREED TO:
ICPLANET,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
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HUNTINGTON ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
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INTERACTIVE ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
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TKO PERSONNEL INC.
a California corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
------------------------------------
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GROUP-IPEX, INC.
a California corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
------------------------------------
TKI ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
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TA ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Treasurer
------------------------------------
ONSTAFF ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: Treasurer
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