AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
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Exhibit 10(S)
EXECUTION COPY
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of June 24, 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'), February 19, 2004 (the "Second Amendment") and April 6, 2004 (the "Third 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. Definition of "Permitted Dispositions". Subsection (e) of the definition of "Permitted Dispositions" in Section 1 of the Original Agreement shall be deleted in its entirety and replaced by the following:
(e) sales or other dispositions of the assets (including any Real Property) of Borrower or the Guarantors located in Tempe, Arizona; Bakersfield, California; Denver, Colorado; South Holland, Illinois; Baltimore, Maryland; Warren, Michigan; West Detroit, Michigan; Fayetteville, North Carolina; Cleveland, Ohio; Dayton, Ohio; Emsworth, Pennsylvania; McKeesport, Pennsylvania; Houston, Texas; Everett, Washington; Tacoma, Washington; and Charleston, West Virginia.
2. 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, the Second Amendment and the Third Amendment; and the Original Agreement, as supplemented and amended by the First Amendment, the Second Amendment, the Third 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, the Second Amendment and the Third Amendment shall remain in full force and effect and are hereby ratified.
3. 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 fast 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/ XXXXXX XXXXXXXX |
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| Title: | Chief Financial Officer |
Title: | Senior Vice President |
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| XXXX XXXXXX REALTY CORP., a California corporation |
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| By: | /s/ XXXXXXX X. XXXXXXXXX |
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| Title: | Chief Financial Officer |
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AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
