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AMENDMENT NUMBER THREE TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER THREE TO LOAN AND SECURITY AGREEMENT, dated as of
April 14, 2000 (this "Amendment"), amends that certain Loan and Security
Agreement, dated as of June 30, 1999 (as amended from time to time, the "Loan
Agreement"), by and between TURF PARTNERS,INC., a Delaware corporation
("Borrower"), on the one hand, and COAST BUSINESS CREDIT, a division of
Southern Pacific Bank, a California corporation ("Coast"), on the other hand.
All initially capitalized terms used in this Amendment shall have the
meanings ascribed thereto in the Loan Agreement unless specifically defined
herein.
RECITALS
WHEREAS, Borrower and Coast wish to amend the Loan Agreement pursuant to
the terms and provisions set forth in this Amendment; and
NOW, THEREFORE, the parties hereto agree as follows:
AMENDMENT
Section 1. WAIVER OF MAXIMUM DIVIDENDS LIMITATION SET FORTH IN
SECTION 7.5(j) LOAN AGREEMENT. Section 8.5(i) of the Agreement allows the
upstreaming of funds to Guarantor in an amount not to exceed 75% of net
income per month PROVIDED, HOWEVER, that the total of such upstreaming cannot
exceed 75% of period to date net income and 75% of fiscal year end net
income. Borrower has violated this section by upstreaming funds to Guarantor
in excess of 75% of its fiscal year end net income. Such violation concerns
the fiscal year end period ending December 31, 1999. Such violation
constitutes an Event of Default under the Agreement.
Borrower has requested and Coast has agreed to waive such Event of
Default.
Coast's waiver of such Event of Default is limited precisely as written
and shall not be deemed to (a) be a waiver or modification of any other term
or condition of the Agreement or any other loan document or (b) prejudice any
right or remedy which Coast may now have or may have in the future (except to
the extent such right or remedy is based upon the foregoing Event of Default)
under or in connection with the Agreement or any loan document.
Section 2. AMENDMENT TO THE DEFINITION OF "NET WORTH" SET FORTH IN
SECTION 1.1 OF THE LOAN AGREEMENT. The definition of "Net Worth" set forth in
Section 1.1 of the Loan Agreement is hereby amended by deleting such
definition in its entirety and replacing it with the following:
"NET WORTH" means shareholder's equity, PLUS subordinated debt
otherwise permitted hereunder LESS Goodwill, as that term is
defined by generally accepted principles."
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Section 3. AMENDMENT TO THE SECTION 8.5(i) OF THE LOAN AGREEMENT.
Section 8.5(i) of the Loan Agreement is hereby amended by deleting such
paragraph in its entirety and replacing it with the following:
"(i) pay or declare any dividends or distributions on the ownership
interests in Borrower except for: (i) dividends or distributions payable
solely in stock form of ownership interests in Borrower, and (ii)
upstreaming of funds to Guarantor in an amount not to exceed the lesser
of: (i) 75% of year-to-date net income, or (ii) the sum of 75% of
year-to-date net income PLUS projected net income for the
remaining periods of the year.
Section 4. AMENDMENT TO THE SECTION 8.1 OF THE SCHEDULE TO THE LOAN
AGREEMENT. Section 8.1 of the Schedule to the Loan Agreement is hereby
amended by deleting such paragraph in its entirety and replacing it with the
following:
"Borrower's ongoing Net Worth shall be no less the following amounts set
forth below for the corresponding quarterly periods:
<TABLE>
<CAPTION>
<S> <C>
QUARTERLY PERIOD ENDING NET WORTH REQUIREMENT
March 31, 2000 $3,675,000
June 30, 2000 $6,800,000
September 30, 2000 and An amount equal to Borrower's actual
each quarterly period thereafter Net Worth as of 12/31/99 plus 80% of
Borrower's projected year-to-date net
income."
</TABLE>
Section 5. CONDITIONS PRECEDENT. The effectiveness of this Amendment
is expressly conditioned upon: (a) the receipt by Coast of a fully executed
copy of this Amendment; (b) the receipt by Coast of an executed copy of that
certain waiver/forbearance letter, of even date herewith, concerning Guarantor
(the "Waiver/Forbearance Letter"); and (c) receipt of that certain
"Waiver/Modification Fee" of $25,000 as set forth in the Waiver/Forbearance
Letter.
Section 6. ENTIRE AGREEMENT. The Loan Agreement, as amended hereby,
embodies the entire agreement and understanding between the parties hereto
and supersedes all prior agreements and understandings relating to the
subject matter hereof. Borrower represents, warrants and agrees that in
entering into the Loan Agreement and consenting to this Amendment, it has not
relied on any representation, promise, understanding or agreement, oral or
written, of, by or with, Coast or any of its agents, employees, or counsel,
except the representations, promises, understandings and agreements
specifically contained in or referred to in the Loan Agreement, as amended
hereby.
Section 7. CONFLICTING TERMS. In the event of a conflict between the
terms and provisions of this Amendment and the terms and provisions of the
Loan Agreement, the
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terms of this Amendment shall govern. In all other respects, the Loan
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
Section 8. MISCELLANEOUS. This Amendment shall be governed by and
construed in accordance with the laws of the State of California. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any party hereto may execute
this Amendment by signing such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of
the date first above written.
BORROWER:
TURF PARTNERS, INC.,
a Delaware corporation
By /s/ Dennis N. Sentz
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By /s/ Dennis N. Sentz
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Secretary
COAST:
COAST BUSINESS CREDIT,
A division of Southern Pacific Bank
By: /s/ PHILLIP GOESSLER
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Title: Vice President
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CONSENT OF GUARANTOR
This undersigned, as guarantor of the Obligations (as defined in that
certain Loan Security Agreement, dated as of June 30, 1999, (as amended,
together with all supplements, addenda, exhibits and schedules thereto, the
"Agreement"), entered into by and between Coast Business Credit, a division
of Southern Pacific Bank, a California corporation ("Coast"), and Turf
Partners, Inc., a Delaware corporation ("Borrower")), under its respective
Continuing Guaranty, dated as of June 30, 1999, entered into by the
undersigned (the "Guaranty"), hereby acknowledges notice of the foregoing
Amendment Number Three to Loan and Security Agreement, dated as of April 14,
2000 (the "Amendment"), between Coast and Borrower, consents to the terms
contained therein, and agrees that its respective Continuing Guaranty shall
remain in full force and effect.
Dated as of April 14, 2000 ECO SOIL SYSTEMS, INC.,
a Nebraska corporation
By /s/ Dennis Sentz
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Title CFO
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