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EXHIBIT 10.73
AMENDMENT
TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "First
Amendment") is made as of November 20, 2000, by and between FOOTHILL CAPITAL
CORPORATION, a California corporation ("Lender"), and EPICOR SOFTWARE
CORPORATION, a Delaware corporation ("Borrower"), with reference to the
following facts:
A. The parties hereto have entered into that certain Loan and Security
Agreement, dated as of July 26, 2000, as amended (the "Loan Agreement"), and
other Loan Documents. (Capitalized terms, which are used herein but not defined
herein, shall have the meanings ascribed to them in the Loan Agreement.)
B. Borrower has requested that Lender agree to certain modifications to
the Loan Agreement, all on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendments to Loan Agreement. Effective as of the Effective Date, the
Loan Agreement shall be amended as follows:
1.1 Section 7.20(a)(i) of the Loan Agreement is deleted and
replaced by the
following:
"a. MINIMUM EBITDA. EBITDA, measured on a fiscal quarter-end basis, of
not less than the required amount set forth in the following table for
the applicable period set forth opposite thereto:
"Applicable Amount Applicable Period
$0 For the 3 month period
ending September 30, 2000
$(8,500,000) For the 6 month period
ending December 31, 2000
$(9,650,000) For the 9 month period
ending March 31, 2001
$(8,200,000) For the 12 month period
ending June 30, 2001
$1,800,000 For the 12 month period
ending September 30, 2001
$6,350,000 For the 12 month period
ending December 31, 2001
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$11,950,000 For the 12 month period
ending March 31, 2002
$17,150,000 For the 12 month period
ending each fiscal quarter thereafter"
1.2 Section 7.20(a)(ii) of the Loan Agreement is deleted and
replaced by the following:
"b. TANGIBLE NET WORTH. Tangible Net Worth of at least the required
amount set forth in the following table as of the applicable date set
forth opposite thereto:
"Applicable Amount Applicable Date
$30,000,000 September 30, 2000
$3,950,000 December 31, 2000
$1,200,000 March 31, 2001
$3,950,000 June 30, 2001
$3,800,000 September 30, 2001
$5,650,000 December 31, 2001
$14,800,000 March 31, 2002
$19,000,000 The last date of any fiscal
quarter thereafter"
2. Conditions to Effectiveness. The effectiveness of this First
Amendment is subject to the receipt by Lender of the following, and the date on
which the Lender receives all of the following shall be the "Effective Date:"
2.1 A counterpart of this First Amendment, executed by Borrower;
and
2.2 Borrower has paid Lender an amendment fee of $23,500 and all
of Lender's attorneys' fees and costs as described in Section 3.8 hereof.
3. Miscellaneous.
3.1 Loan Documents Confirmed. Except as expressly amended hereby,
the Loan Agreement and the other Loan Documents shall remain unchanged and in
full force and effect. This First Amendment is hereby incorporated into the Loan
Agreement.
3.2 Choice of Law. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THIS
FIRST AMENDMENT AND ALL OTHER DOCUMENTS BEING EXECUTED CONCURRENTLY HEREWITH
SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
3.3 Sole Parties. This First Amendment is made exclusively for
the benefit of and solely for the protection of the parties hereto, and no other
person or persons shall have the right to enforce the provisions hereof by
action or legal proceedings or otherwise.
3.4 Interpretation. Whenever the context so requires, all words
used in the singular will be construed to have been used in the plural, and vice
versa, and each gender will include any other gender. The headings used in this
First Amendment are inserted solely for the convenience of reference and are not
part of, nor intended to govern, limit or aid in the construction of, any term
or provision hereof.
3.5 Counterparts. This First Amendment may be executed in one or
more counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument.
3.6 Further Assurances. From time to time, each party will
execute and deliver in recordable form, if necessary, such further instruments
and will take such other action as the other party reasonably may request in
order to discharge and perform their obligations and agreements under this First
Amendment.
3.7 Time of Essence. Time is of the essence in this First
Amendment.
3.8 Attorneys' Fees and Costs. The Borrower agrees that all of
Lender's attorneys' fees and costs in drafting and negotiating this First
Amendment are part of the Obligations and are payable on demand.
IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first written above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ XXXXXXXXX XXXXX
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Title: Senior Vice President
EPICOR SOFTWARE CORPORATION,
a Delaware corporation
By /s/ XXX XXX
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Title: Vice President and CFO
