# **Exhibit 10.63**

 

 

August 13, 2003

 

David E. Pertl, SeniorVice President & Chief Financial Officer

Fresh Choice, Inc.

485 Cochrane Circle

Morgan Hill, Ca 95037

 

Dear David,

 

Inresponse to your recent request, Mid-Peninsula Bank, subject to your acceptanceand acknowledgement, hereby agrees to amend our Commercial Deed Of Trust,Financing Statement, Security Agreement and Fixture Filing (with Assignment OfRents and Leases) dated August 13, 2001, as follows:

 

•                  **Section 10.3****        MinimumRatio.**

Trustorshall maintain a ratio, as of the end of each fiscal year of Trustor, of (x)the amount of Trustor’s annual Net Income adjusted to exclude any non-cashincome and to exclude expenses for interest, taxes, depreciation, amortization,asset impairment, and restaurantopening costs; less the amount ofdividends and distributions paid to shareholders of Trustor, to (y) the amountof the current portion of long-term obligations plus the amount of the annualinterest expense for the fiscal year, that is equal to or greater than 2.00 to1.  Except as provided above, allcomputations made to determine compliance with the requirements contained inthis paragraph shall be based on Trustor’s most recent annual financialstatements, and shall be made in accordance with generally accepted accountingprinciples, applied on a consistent basis, and certified by Trustor as beingtrue and correct.

 

Please sign and returnthe acknowledgement copy to this letter to me to confirm your acceptance of theabove modifications on behalf of Fresh Choice, Inc.  In addition, your acknowledgement will confirm to Mid-PeninsulaBank that, except as expressly changed by this agreement, the terms of theoriginal obligations of Fresh Choice, Inc. to Mid-Peninsula Bank, including allagreements evidencing or securing the obligations, remain unchanged and in fullforce and effect.

 

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| Sincerely,                                                           |
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|                                                                 |
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| /s/ Joe Stafford                                                     |   |
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| Joe Stafford                                                         |
| Senior Vice President                                                |
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| Acknowledged and  Accepted by:                                       |
| Fresh Choice, Inc.                                                   |
| By:                                                                  |
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| /s/ David E. Pertl                                                   |   |
| David E. Pertl, Senior  Vice President & Chief Financial Officer |
|                                                                      |  |  |

 

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