EXHIBIT 4.14
FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT,
dated as of December 29, 2000 (this "AMENDMENT"), is by and between BANK OF
AMERICA, N.A., as successor by merger to Bank of America Illinois (the
"LENDER"), ELXSI, a California corporation ("ELXSI"), ▇▇▇▇▇▇▇▇'▇ HOLDINGS
COMPANY, INC., a Delaware corporation ("Holdings"), and ▇▇▇▇▇▇▇▇'▇ FAMILY
RESTAURANTS, INC., a Delaware corporation ("▇▇▇▇▇▇▇▇'▇").
W I T N E S S E T H:
WHEREAS, ELXSI and Lender are parties to that certain Amended and Restated
Loan and Security Agreement, dated as of December 30, 1996 (as amended,
restated, supplemented or otherwise modified and in effect from time to time,
collectively, the "LOAN Agreement"), pursuant to which the Lender has provided
to ELXSI credit facilities and other financial accommodations and has received a
security interest and lien in substantially all of the assets of ELXSI; and
WHEREAS, ELXSI proposes to contribute and assign substantially all of the
assets of its ▇▇▇▇▇▇▇▇'▇ Family Restaurants division to Holdings, and Holdings
proposes to contribute and assign such assets to ▇▇▇▇▇▇▇▇'▇, all pursuant to
that certain Contribution Agreement, dated of even date herewith (as amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Contribution Agreement"); and
WHEREAS, ELXSI has requested that the Lender consent to such transfers and
otherwise amend the Loan Agreement in certain respects as set forth herein, and
the Lender is agreeable to the same, subject to the terms and conditions hereof
including, without limitation, adding Holdings and ▇▇▇▇▇▇▇▇'▇ to the Loan
Agreement as co-borrowers thereunder;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein have the meanings assigned to such terms in the Loan
Agreement, as amended hereby. In addition, the term (i) "Bonds" means the
$2,500,000 Orange County Industrial Development Authority Industrial Development
Revenue Bonds (ELXSI Project), Series 1997, (iii) "Bondholder" means Bank of
America, N.A., as holder of all of the Bonds, and (iii) "Bond Documents" means
the Loan Agreement, dated as of September 24, 1997 and other operative documents
relating to the Bonds and to any letters of credit issued by Bank of America,
N.A. in connection therewith.
SECTION 2. CONSENT TO CONTRIBUTION AGREEMENT. On the date hereof, and
notwithstanding anything to the contrary set forth in the Loan Agreement or any
Related Agreement (including any "due on sale" provision of any Mortgage, which
solely for purposes of this express consent shall not be deemed effective) the
Lender and Bondholder hereby consent to the Contribution Agreement and
consummation of the transactions set forth therein or otherwise contemplated
thereby, and waive any violation of the Loan Agreement, other Related Agreements
and the Bond Documents caused thereby, PROVIDED that (i) none of Lender's
existing security interests and liens shall be released on any of the assets
transferred pursuant to the Contribution Agreement, all of which shall continue
in full force and effect, (ii) Borrower complies with all the terms and
conditions set forth in this Amendment, and (iii) the Effective Date (as defined
below) occurs not later than 5:00 p.m. Chicago time, January 2, 2001.
SECTION 3. ASSUMPTION AND JOINDER. On the date hereof, in order to induce
the Lender to enter into this Amendment, each of Holdings and ▇▇▇▇▇▇▇▇'▇ hereby
irrevocably and unconditionally: (i) agrees to be a party to the Loan Agreement
as amended hereby and as in effect hereafter; (ii) assumes, on a joint and
several basis with ELXSI, all of the existing and future Liabilities under the
Loan Agreement as amended hereby and as in effect hereafter; (iii) agrees to be
bound as a "Borrower" by all of the terms of the Loan Agreement, as amended
hereby and as in effect hereafter; (iv) agrees to perform and discharge all of
the Liabilities and other obligations of a "Borrower" contained in or arising
under the terms of the Loan Agreement as amended hereby and as in effect
hereafter; (v) agrees that the terms "Borrower" and "Obligor" are deemed to
include each of ELXSI, Holdings and ▇▇▇▇▇▇▇▇'▇, jointly and severally; (vi)
agrees that, from and after the date hereof, it shall be a party to each Note as
though it were an original signatory thereto, (vii) acknowledges and agrees that
all assets and properties transferred to it under the Contribution Agreement
remain subject to the existing security interests and liens of Lender and (viii)
acknowledges and agrees that its joint and several obligations hereunder are
incurred as a primary obligation of payment and not as a mere surety, that all
suretyship defenses are hereby waived to the extent permitted by applicable law,
that all rights of subrogation, indemnification, reimbursement and contribution
are hereby waived until the Liabilities are indefeasibly paid in full in cash,
and that in any enforcement action against Borrower Lender may proceed
independently against any individual Borrower without the requirement of
proceeding against, and without being deemed to waive or impair its right to
proceed at a separate time against, any other Borrower. The foregoing shall not
constitute a novation of ELXSI under any of the Loan Agreement or other Related
Agreements and the obligations of Holdings and ▇▇▇▇▇▇▇▇'▇ under this Section 3
shall constitute additional "Liabilities" under the Loan Agreement.
SECTION 4. GRANT OF COLLATERAL. On the date hereof, as security for the
payment of all Loans now or hereafter made by Lender under the Loan Agreement or
under any Note, and as security for the payment or other satisfaction of all
other Liabilities (including, without limitation, all reimbursement obligations
under any Letters of Credit), each of Holdings and ▇▇▇▇▇▇▇▇'▇ hereby grants to
Lender a security interest in and to the following property of each of them,
whether now owned or existing, or hereafter acquired or coming into existence,
wherever now or hereafter located (all such property is hereinafter referred to
collectively as the "COLLATERAL"):
(a) Accounts Receivable;
(b) Equipment and Fixtures;
(c) Inventory;
(d) General Intangibles;
(e) Contract Rights and documents of title;
(f) All chattel paper and instruments evidencing, arising out of or
relating to any obligation to it for goods sold or leased or services
rendered, or otherwise arising out of or relating to any property described
in clauses (a) through (e) above;
(g) Any and all balances, credits, deposits (general or special, time
or demand, provisional or final), accounts or monies of or in its name now
or hereafter with Lender and any and all property of every kind or
description of or in its name now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to, or standing
to its credit on the books of, Lender, any agent or bailee for Lender, or
any Participant;
(h) All of its interest in any goods, the sale or lease of which shall
have given or shall give rise to, and in all guaranties and other property
securing the payment of or performance under, any Accounts Receivable,
Contract Rights, General Intangibles or any chattel paper or instruments
referred to in clause (f) above;
(i) Any and all other property, of any kind or description (including
but not limited to its real estate), including, without limitation, any
property subject to a separate mortgage, pledge or security interest in
favor of Lender or in which Lender now or hereafter has or acquires a
security interest securing any Liabilities pursuant to an agreement or
instrument other than the Loan Agreement;
(j) All Intellectual Property Collateral;
(k) All Investment Property;
(l) All of its right, title and interest in and to all replacements,
substitutions, additions or accessions to or for any of the foregoing;
(m) All of its right, title and interest in and to all books,
correspondence, credit files, records, invoices and other papers and
documents, including, without limitation all tapes, cards, computer runs,
computer programs and other papers and documents in its possession or
control or of any provider of computer services from time to time acting
for it, and all rights in, to and under all policies of insurance,
including claims of rights to payments thereunder and proceeds therefrom,
including any credit insurance; and
(n) All products and proceeds (including but not limited to any
Accounts Receivable or other proceeds arising from the sale or other
disposition of any Collateral, any returns of any Equipment or Inventory
sold by Borrower, and the proceeds of any insurance covering any of the
Collateral) of any of the foregoing.
Notwithstanding the foregoing, Lender agrees that the term "COLLATERAL"
shall not include any property released by Lender pursuant to SECTION 3.6
of the Loan Agreement so long as Lender is prohibited from having a Lien on
such property pursuant to the terms of any document relating to
Indebtedness that is secured by a Lien on such property which is permitted
by SECTION 5.16 of the Loan Agreement.
SECTION 5. OUTSTANDING LOANS; CHANGES TO FACILITIES. On the date hereof,
the unpaid principal balance of the Revolving Loans is $6,781,828.00 and of the
Supplemental Revolving Loans is $3,525,000.00 (in each case before giving effect
to the borrowing and application of proceeds of the Term Loan as herein
provided). On the date hereof and after giving effect to the Term Loan provided
herein, the Supplemental Revolving Credit Amount shall be permanently reduced to
zero (0). On the date hereof, the outstanding face amount of all Letters of
Credit is $526,314. The Additional Revolving Credit Amount was previously
reduced to zero (0) pursuant to the Second Amendment, dated as of September 24,
1997, and accordingly Borrower shall no longer have any right under the Loan
Agreement to obtain Supplemental Revolving Loans or Additional Revolving Loans.
After the date hereof, the Credit Reduction Amount shall be deemed zero (0) and
the Revolving Credit Amount shall no longer be reduced (pursuant to Section
2.1.3(a) of the Loan Agreement or otherwise) on account thereof.
SECTION 6. TERM LOAN. On the date hereof, the Lender shall make a term
loan ("Term Loan" or "Term Loans") to the Borrower in the principal amount of
$5,000,000. The proceeds of such loan shall be used to repay an equivalent
principal balance, first, of the Supplemental Revolving Loans, and then of the
Revolving Loans. The Borrower shall make quarterly principal payments on the
term loan in the amount of $250,000 each on the last day of each March, June,
September and December hereafter. The balance of the Term Loan shall be payable
in full on the Termination Date. The Term Loan initially shall bear interest at
the Reference Rate plus the Reference Rate Margin for Term Loans. The Borrower
shall be permitted to set interest based on the Eurodollar Rate for all or a
portion of the Term Loan and for one or more Interest Periods, all pursuant to
the same terms and conditions as currently exist under the Loan Agreement with
respect to Revolving Loans, MUTATIS MUTANDIS, including, without limitation,
with regard to borrowing and conversion notices, interest repayment
requirements, breakage and other indemnified costs and expenses. Each portion of
the Term Loan bearing interest for a particular Interest Period or at the
Reference Rate shall be deemed a "Loan" under the Loan Agreement. The Term Loan
shall be evidenced by a promissory note in the form attached as EXHIBIT A
hereto. Such note shall constitute a "Note" as defined in the Loan Agreement,
and the obligations of Borrower to pay the principal and interest thereof shall
constitute additional "Liabilities" under the Loan Agreement subject to all the
terms and provisions thereof.
SECTION 7. INTEREST RATE MARGINS. On the date hereof and until the
Liabilities are indefeasibly paid in full, and notwithstanding any term or
provision of the Loan Agreement to the contrary, (i) the Eurodollar Rate Margin
for Revolving Loans shall be two percent (2%) and for Term Loans shall be 2.25%,
and (ii) the Reference Rate Margin for Revolving Loans shall be one-quarter of
one percent (0.25%) and for Term Loans shall be one-half of one percent (0.50%).
SECTION 8. FURTHER AMENDMENTS TO THE LOAN AGREEMENT. On the date hereof,
the Loan Agreement is further amended as follows:
(a) Section 1.1 of the Loan Agreement shall be amended by adding
thereto in proper alphabetical order the following new definitions:
"▇▇▇▇▇▇▇▇'▇ SUBORDINATED NOTE" means, collectively, the Senior
Subordinated Promissory Note, dated December 30, 2000, in the face
principal amount of $20,000,000 and the 15% Subordinated Promissory Note,
dated December 30, 2000, in the face principal amount of $25,000,000, each
issued to ELXSI by ▇▇▇▇▇▇▇▇'▇ and as the same may be amended, supplemented
or otherwise modified from time to time.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement, dated as of
December 29, 2000, between ELXSI, ▇▇▇▇▇▇▇▇'▇ Holdings Company, Inc. and
▇▇▇▇▇▇▇▇'▇ Family Restaurants, Inc., as amended, supplemented or otherwise
amended from time to time.
(b) The definition of "REFERENCE RATE" appearing in SECTION 1.1 of the
Loan Agreement is hereby amended by deleting such definition in its
entirety and inserting the following in lieu thereof:
""REFERENCE RATE" means the rate of interest publicly announced by the
Lender as its prime rate. The prime rate is set by the Lender based on
various factors, including the Lender's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans. The Lender may price loans to its customers at, above,
or below the prime rate. Any change in the prime rate will take effect at
the opening of business on the day specified in the public announcement of
a change in the prime rate."
(c) The definition of "REVOLVING CREDIT AMOUNT" appearing in SECTION
1.1 of the Loan Agreement is hereby amended by deleting such definition in
its entirety and inserting the following in lieu thereof:
""REVOLVING CREDIT AMOUNT" means $15,000,000 as adjusted after such
date pursuant to this Agreement, including pursuant to SECTIONS 2.1.3 and
2.1.4."
(d) The definition of "SUBORDINATED DEBT" appearing in Section 1.1 of
the Loan Agreement is hereby amended by restating the same in its entirety
as follows:
"SUBORDINATED DEBT" means (a) the Subordinated Note, (b) the
▇▇▇▇▇▇▇▇'▇ Subordinated Note, and (c) that portion of any other
Indebtedness of Borrower which contains terms satisfactory to Lender and is
subordinated, in a manner satisfactory to Lender, as to right and time of
payment of principal and interest thereon, to all of the Liabilities.
(e) The definition of "TERMINATION DATE" appearing in SECTION 1.1 of
the Loan Agreement is hereby amended by deleting "June 30, 2001" appearing
therein and substituting therefor "December 31, 2003".
(f) Section 2.2 (a)(i)(B) of the Loan Agreement is hereby amended by
deleting the number "$2,500,000" appearing therein and substituting in lieu
thereof the number "$1,500,000."
(g) Section 2.4.2 of the Loan Agreement is hereby amended to restate
the same in its entirety as follows:
"2.4.2 NONUSE FEE. Borrower agrees to pay to Lender a fee equal
to one-quarter of one percent (.25%) per annum on the daily average
amount by which the Revolving Credit Amount exceeds the sum of the
outstanding principal balance of the Revolving Loans plus the Letter
of Credit Obligations. The fee provided for in this SECTION 2.4.2
shall be payable quarterly in arrears on the last day of each March,
June, September and December, commencing March 31, 2001, and on the
date the Credit terminates, in each case for the period then ended."
Notwithstanding the foregoing, the non-use fees through the date hereof
shall be paid in accordance with such Section 2.4.2 as in effect prior to
this Amendment.
(h) Section 4.10 of the Loan Agreement is hereby amended by restating
the same in its entirety as follows:
"Section 4.10 SUBSIDIARIES. Borrower has no Subsidiaries except
for Cues B.V., Knopofex Ltd. and those listed on Schedule 4.10, of
which (in each case) it owns 100% of the issued and outstanding
capital stock."
(i) Section 5.13(c) of the Loan Agreement is hereby amended by
restating the same in its entirety as follows:
"(c) Borrower may make payments of regularly scheduled principal and interest on
the ▇▇▇▇▇▇▇▇'▇ Subordinated Note, but not accelerated or prepaid
amounts, PROVIDED that after giving effect thereto no Unmatured Event
of Default or Event of Default shall exist and be continuing."
(j) Notwithstanding any term or provision of Sections 5.13, 5.14 or
5.18 of the Loan Agreement to the contrary, the Borrower (i) shall not pay
any dividends on, or redeem or repurchase any shares of, Holding's
preferred stock, other than the issuance of additional preferred stock of
the same class in payment of scheduled dividends as and when due, which
stock shall be promptly delivered to the Lender as additional Collateral,
and (ii) shall be permitted to make and repay intercompany loans and
advances, and pay interest and dividends and make equity contributions,
among themselves (but not to Parent) in connection with cash management
systems implemented or otherwise in effect in the ordinary course of
business and satisfactory to Lender in its reasonable discretion, PROVIDED
that at the request of Lender Borrower shall execute and -------- deliver
as collateral promissory notes and other appropriate instruments in form
and substance satisfactory to Lender evidencing such intercompany loans and
advances not so evidenced, and provided further that any equity
contributions shall be on account of currently outstanding capital stock
and not through the issuance of additional capital stock.
(k) Section 5.16 (d) of the Loan Agreement is hereby amended by
restating the same in its entirety as follows:
"(d) Liens in connection with the acquisition of property after
Fiscal Year 2000 by way of purchase money mortgage, conditional
sale or other title retention agreement, Capitalized Lease or
other deferred payment contract, and attaching only to the
property being acquired (and proceeds thereof and accessions
thereto), if (i) except in the case of a Capitalized Lease, the
Indebtedness secured thereby does not exceed 75% of the fair
market value of such property at the time of the acquisition
thereof and (ii) the aggregate principal amount of the
Indebtedness of Borrower and its Subsidiaries secured by such
Liens does not exceed $500,000 of such Indebtedness incurred in
each Fiscal Year after Fiscal Year 2000, on a noncumulative
basis;"
(l) Notwithstanding any term or provision of Section 5.17 of the Loan
Agreement to the contrary, any Borrower shall be permitted to be a
guarantor or co-obligor on any restaurant real property lease of ▇▇▇▇▇▇▇▇'▇
or of any of the Liabilities under the Loan Agreement and Related
Agreements.
(m) Notwithstanding any term or provision of Sections 5.18 and 5.19 of
the Loan Agreement to the contrary, ELXSI may (i) make loans to, and equity
investments in, Triton Institutech, not exceeding $300,000 in the
aggregate, and (ii) make loans to, and equity investments in, Cues East, a
Subsidiary to be formed under the laws of Russia, not exceeding $50,000 in
the aggregate.
(n) Section 5.20 of the Loan Agreement is hereby amended by restating
the same in its entirety as follows:
"Section 5.20 LEASES. Not enter into or permit to exist, or permit any
Subsidiary to enter into or permit to exist, any arrangements for the
leasing by Borrower or such Subsidiary, as lessee under a lease which
is NOT a Capitalized Lease, of any real or personal property (or any
interest therein) other than under (a) leases in existence on the
December 29, 2000 and listed on SCHEDULE 4.15 and extensions and
renewals thereof (provided that any increase in the rental payments
thereunder will count against the permitted lease rentals in clause
(b) below) and (b) leases entered into after December 29, 2000 having
base rentals not exceeding (in the aggregate for all such leases
entered into in a particular Fiscal Year) $400,000 in Fiscal Year
2000, and $500,000 in each Fiscal Year thereafter, on a noncumulative
basis."
(o) Notwithstanding any term or provision of Section 5.25 of the Loan
Agreement to the contrary, the Borrower may use proceeds of the Revolving
Loans after the date hereof to provide funds to Parent for its
contemporaneous purchase of Parent Securities in an aggregate amount not
exceeding $500,000, PROVIDED no Unmatured Event of Default or Event of
Default exists at the time such funds are so used.
(p) The Loan Agreement is hereby amended by adding thereto the
following new Sections 5.30 and 5.31:
"Section 5.30 ▇▇▇▇▇▇▇▇'▇ TRANSACTION. Ensure that at all times:
(a) On and after December 30, 2000, ELXSI owns, beneficially and
of record, on a fully-diluted basis 100% of the issued and
outstanding capital stock of ▇▇▇▇▇▇▇▇'▇ Holdings Company,
Inc. ("Holdings"), and Holdings owns, beneficially and of
record, on a fully-diluted basis 100% of the issued and
outstanding capital stock of ▇▇▇▇▇▇▇▇'▇ Family Restaurants,
Inc. ("▇▇▇▇▇▇▇▇'▇");
(b) Lender has a first perfected security interest in, and has
possession of, all issued and outstanding capital stock of
Holdings and ▇▇▇▇▇▇▇▇'▇;
(c) no amendments, supplements or other modifications are made
to the ▇▇▇▇▇▇▇▇'▇ Subordinated Note or the Contribution
Agreement without the prior express written consent of
Lender in each instance; and
(d) no payments of the ▇▇▇▇▇▇▇▇'▇ Subordinated Note are made in
violation of the Subordination Agreement, dated as of
December 29, 2000, between ELXSI and Lender.
Section 5.31 CADMUS NOTES. Ensure that:
(a) no amendments, supplements or other modifications are made
to the promissory notes of Cadmus Corporation payable to
ELXSI without the prior express written consent of Lender in
each instance; and
(b) All proceeds of such notes are immediately paid to Lender to
repay any outstanding balance of the Revolving Loan (it
being acknowledged (for the avoidance of doubt) that,
subject to the other terms of this Agreement) the amount of
such proceeds may be reborrowed hereunder subject to the
terms and conditions hereof."
(q) SUPPLEMENT A to the Loan Agreement is hereby amended by deleting
such Supplement in its entirety and inserting SUPPLEMENT A attached hereto
in lieu thereof.
SECTION 9. ADDITIONAL WAIVERS. On the Effective Date, the Lender hereby
waives any breach of: (i) Section 5.2(e) of the Loan Agreement due to Borrower's
failure to give Lender updated business and collateral location information
prior to the date hereof, PROVIDED Borrower has so furnished such information to
Lender by the Effective Date, (ii) Section 5.12 of the Loan Agreement due to
Borrower's restaurant closings and/or sales that have occurred prior to the date
hereof without Lender's, PROVIDED Borrower has notified Lender by the Effective
Date of the details regarding such closings and sales, (iii) Section 5.18 of the
Loan Agreement due to the Borrower having made loans to Cadmus Corporation not
exceeding $11,000,000 in outstanding principal amount, PROVIDED no further loans
to Cadmus Corporation shall be made after the date hereof, (iv) Section 5.26 of
the Loan Agreement due to the execution by Borrower of employment agreements
with ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ prior to the date hereof,
PROVIDED Borrower has furnished Lender by the Effective Date a true and correct
copy of such agreements and amendments, and PROVIDED FURTHER no additional
amendments, supplements or other modifications thereto shall be made hereafter
without the prior written consent of Lender, (v) Section 5.27 of the Loan
Agreement through the date hereof, PROVIDED Borrower shall comply with the terms
and provisions thereof hereafter, and (vi) Sections 5.26 and 5.28 of the Loan
Agreement due to Borrower's amendment of the Management Agreement prior to the
date hereof without Lender's consent, PROVIDED Borrower has furnished Lender a
true and correct copy thereof by the Effective Date, and PROVIDED fURTHER
Borrower shall make no further amendments, supplements or other modifications
thereto hereafter without the prior written consent of Lender.
SECTION 10. AMENDMENT FEE. In consideration of the execution of this
Amendment by the Lender, the Borrower hereby agrees to pay a fully earned and
nonrefundable fee of $140,000 (the "AMENDMENT FEE") to Lender.
SECTION 11. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants to the Lender:
(a) the representations and warranties contained in the Loan Agreement
(as amended hereby) and the other Related Agreements and Supplemental
Documentation are true and correct in all material respects at and as of
the date hereof as though made on and as of the date hereof (except (x) to
the extent specifically made with regard to a particular date and (y) for
such changes as are a result of any act or omission specifically permitted
under the Loan Agreement (or under any Related Agreement), or as otherwise
specifically permitted by Lender or as otherwise set forth on revised
Schedules to the Loan Agreement attached as Exhibit B hereto);
(b) on the Effective Date, after giving effect to this Amendment, no
Unmatured Event of Default or Event of Default will have occurred and be
continuing;
(c) the execution, delivery and performance of this Amendment has been
duly authorized by all necessary action on the part of, and duly executed
and delivered by, the Borrower, and this Amendment is a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as the enforcement thereof may be subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Amendment does not
conflict with or result in a breach by the Borrower of any term of any
material contract, loan agreement, indenture or other agreement or
instrument to which the Borrower is a party or is subject;
(e) The Contribution Agreement is, and from and after the Closing Date
(as defined in the Contribution Agreement) the Transfer Instruments (as
defined therein) will be, legal, valid and binding obligations of the
parties thereto, will be in full force and effect, and will be sufficient
to transfer to ▇▇▇▇▇▇▇▇'▇ all right, title and interest of Borrower in and
to substantially all of the assets of the ▇▇▇▇▇▇▇▇ Family Restaurant
division of ELXSI. The representations and warranties of the parties set
forth in the Contribution Agreement are true and correct. On the Closing
Date, (i) ELXSI will own, beneficially and of record, all of the issued and
outstanding capital stock of ▇▇▇▇▇▇▇▇'▇ Holdings Company, Inc., comprised
of 10,000 shares of common stock and 10,000 shares of Class A 3% Cumulative
Redeemable Preferred Stock, (ii) Holdings will own, beneficially and of
record, all of the issued and outstanding capital stock of ▇▇▇▇▇▇▇▇'▇,
comprised of 10,000 shares of common stock, (iii) all of the foregoing
described capital stock will be validly issued, is fully paid and
nonassessable, and not subject to any lien, security interest, put, call,
option or other right or encumbrance other than the security interest of
the Lender, (iv) ▇▇▇▇▇▇▇▇'▇ will own all right, title and interest of
Borrower in and to substantially all of the assets of the ▇▇▇▇▇▇▇▇'▇ Family
Restaurants division of ELXSI, free and clear of all liens, security
interests, claims and interests except (x) those of the Lender or as
otherwise permitted by the Loan Agreement, and (y) temporary failures to
obtain Consents and Governmental Approvals and to effect recordations, and
other temporary Closing Shortfalls (as such terms are defined in the
Contribution Agreement), none of which shall have as of the Effective Date
a material adverse effect on the business or financial affairs of
▇▇▇▇▇▇▇▇'▇ or Borrower's ability to repay the Liabilities), and (v) after
giving effect to the transfer of the ▇▇▇▇▇▇▇▇'▇ Family Restaurants division
of ELXSI to ▇▇▇▇▇▇▇▇'▇, Holdings shall have no Subordinated Debt
outstanding in connection with the Contribution Agreement;
(f) The Borrower has furnished Lender a complete and accurate list of
the locations of each restaurant and other facilities to be transferred by
ELXSI to ▇▇▇▇▇▇▇▇'▇ under the Contribution Agreement; and
(g) ELXSI holds promissory notes from Cadmus Corporation payable to it
in the aggregate outstanding principal amount of not more than $11,000,000,
which notes have been guaranteed by ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. An Event of
Default under the Loan Agreement shall occur if Borrower fails to satisfy each
of the following conditions by 5:00 p.m. Chicago time, January 2, 2001 (the
"Effective Date"), except to the extent expressly waived by Lender hereafter in
writing:
(a) the Lender shall have executed and delivered this Amendment;
(b) the Borrower shall have executed and delivered to Lender a new
Revolving Loan Promissory Note in the principal amount of $15,000,000;
promptly following the Effective Date and its receipt of a new Revolving
Loan Promissory Note, Lender shall deliver its original Revolving Loan
Promissory Note to Borrower for cancellation;
(c) the Borrower shall have executed and delivered to Lender a Term
Promissory Note in the form of EXHIBIT A hereto;
(d) the Borrower shall have paid in full the Amendment Fee to Lender
and the reasonable fees and expenses of counsel to the Lender invoiced as
of the Effective Date;
(e) the Borrower shall have delivered to Lender duly executed UCC
financing statements for filing in such jurisdictions as requested by
Lender;
(f) the Borrower shall have delivered to Lender the original
instruments and certificates representing all capital stock of Holdings and
▇▇▇▇▇▇▇▇'▇, together with stock powers endorsed in blank;
(g) the Borrower shall have delivered to Lender the original
▇▇▇▇▇▇▇▇'▇ Subordinated Note, together with subordination agreements of
ELXSI and Holdings in form and substance satisfactory to Lender;
(h) ELXSI Corporation shall have duly executed and delivered its
Consent and Ratification in the form attached hereto;
(i) Cadmus Corporation shall have duly executed and delivered a
subordination agreement in form and substance satisfactory to Lender;
(j) the Lender shall have received all of the following, each duly
executed where appropriate and dated as of the Effective Date (or such
other date as shall be satisfactory to Lender), in form and substance
satisfactory to Lender:
(i) RESOLUTIONS. A copy, duly certified by an officer of ELXSI,
Holdings and ▇▇▇▇▇▇▇▇'▇ of (1) resolutions of the Board of Directors
of such corporation authorizing, as applicable, (A) the borrowings by
Borrower hereunder and (B) the execution, delivery and performance of
this Amendment, (2) all documents evidencing any other necessary
corporate action on the part of such corporation with respect to this
Amendment, and (3) all approvals or consents, if any, with respect to
this Amendment;
(ii) INCUMBENCY CERTIFICATES. A certificate of an officer of
ELXSI, Holdings and ▇▇▇▇▇▇▇▇'▇ certifying the names of the officers of
such corporation authorized to sign this Amendment, and all other
documents and certificates to be delivered by such corporation
hereunder, together with samples of the true signatures of such
officers;
(iii) BORROWER'S CERTIFICATE. The certificate of the President or
Chairman of the Board of ELXSI, Holdings and ▇▇▇▇▇▇▇▇'▇ certifying to
the fulfillment of all conditions precedent (other than any waived by
Lender) to closing the transaction contemplated by this Amendment and
the Contribution Agreement and to the truth and accuracy, as of such
date, of the representations and warranties of Borrower contained in
this Amendment and each Related Agreement to which Borrower is a party
(except (x) to the extent specifically made with regard to a
particular date and (y) for such changes as are a result of any act or
omission specifically permitted under the Loan Agreement (or under any
Related Agreement) or otherwise expressly permitted by Lender) and the
Contribution Agreement;
(iv) BYLAWS. A copy of ELXSI's, Holding's and ▇▇▇▇▇▇▇▇'▇ Bylaws
duly certified by an officer of such corporation (or a certification
by such officer that the same have not been amended since the last
date the Bylaws were certified to Lender);
(v) ARTICLES. A copy of ELXSI's, Holding's and ▇▇▇▇▇▇▇▇'▇
Articles of Incorporation, duly certified by the Secretary of State of
the state of its incorporation;
(vi) REGISTRATION; GOOD STANDING. A copy, duly certified by the
applicable Secretary of State (or other appropriate officer), a
certificate of good standing for ELXSI, Holdings and ▇▇▇▇▇▇▇▇'▇ issued
by the Secretary of State (or other appropriate officer) of the
jurisdiction of its incorporation; and
(vii) LEGAL OPINION. Legal opinion from counsel to ELXSI,
Holdings and ▇▇▇▇▇▇▇▇'▇ in form and substance satisfactory to the
Lender.
(k) Borrower shall have delivered to Lender as part of the Collateral
all of the original promissory notes of ELXSI to Cadmus Corporation,
together with all original guarantees and other collateral documentation
guaranteeing or securing the same;
(l) ▇▇▇▇▇▇▇▇'▇ shall have executed and delivered to Lender a Trademark
Security Agreement in form and substance satisfactory to Lender; and
(m) Borrower shall have furnished to Lender, in form and substance
satisfactory to Lender, the information and documentation required by the
terms of Section 9 hereof.
SECTION 13. CONDITIONS SUBSEQUENT TO EFFECTIVENESS OF AMENDMENT. An Event
of Default under the Loan Agreement shall occur if Borrower fails to satisfy
each of the following conditions subsequent to the Effective Date (except to the
extent expressly waived by Lender hereafter in writing):
(a) With respect to each real estate fee and leasehold interest of
▇▇▇▇▇▇▇▇'▇, ▇▇▇▇▇▇▇▇'▇ shall have delivered to Lender in recordable form a
mortgage or deed of trust and UCC fixture filings, all in form and
substance satisfactory to Lender, other than with respect to two (2) real
estate fee interests on which ELXSI has previously granted a mortgage lien
covering its Kingston and Marlboro, Massachusetts locations) to secure
Indebtedness permitted by the Loan Agreement;
(b) With respect to each real estate leasehold interest of ▇▇▇▇▇▇▇▇'▇,
and the personal property collateral located thereon, the Borrower shall
deliver to Bank a Landlord's Estoppel, Consent and Waiver, in form and
content satisfactory to the Bank, from the owner of the real property and
the holder of any mortgage or deed of trust on such premises within (i) 60
days after the date hereof for Borrower's existing leaseholds, and (ii) at
or prior to the time of entering into any additional leaseholds required to
be mortgaged pursuant to the Loan Agreement;
(c) Within 60 days after the date hereof, an ALTA lender's title
insurance policy from a title company acceptable to the Lender, for at
least Twenty Million Dollars ($20,000,000), insuring the Lender's interest
in the real property collateral described in clauses (a) and (b) above, on
terms in form and substance satisfactory to Lender;
(d) Within 90 days after the date hereof, the Borrower shall obtain
and thereafter maintain in place interest rate protection for the term loan
hereunder in a notional amount of $5,000,000 on terms and conditions
reasonably acceptable to Bank; and
(e) Within 60 days after the date hereof, the Borrower shall deliver a
certificate of the chief financial officer for each of EXLSI, Holdings and
▇▇▇▇▇▇▇▇'▇ certifying that all Consents, Governmental Approvals,
Recordations and Closing Shortfalls (each as defined in the Contribution
Agreement) have been obtained for the transfer to ▇▇▇▇▇▇▇▇'▇ of
substantially all of the assets of the ▇▇▇▇▇▇▇▇'▇ Family Restaurants
division of ELXSI.
SECTION 14. BOND DOCUMENTS. On the Effective Date, the Bond Documents shall
be deemed waived and amended to the extent necessary and applicable to conform
them to the terms, provisions and conditions of Sections 8 and 9 hereof.
SECTION 15. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 16. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 17. EFFECT OF AMENDMENT; REAFFIRMATION OF LOAN DOCUMENTS. The
parties hereto agree and acknowledge that (i) nothing contained in this
Amendment in any manner or respect limits or terminates any of the provisions of
the Loan Agreement or the other Related Agreements or Supplemental Documentation
other than as expressly set forth herein and (ii) the Loan Agreement (as amended
hereby) and each of the other Related Agreements and Supplemental Documentation
remain and continue in full force and effect and are hereby ratified and
reaffirmed in all respects.
SECTION 18. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
ELXSI
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile number: 407/849-0625
▇▇▇▇▇▇▇▇'▇ HOLDINGS COMPANY, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile number: 617/787-1620
▇▇▇▇▇▇▇▇'▇ FAMILY RESTAURANTS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile number: 617/787-1620
BANK OF AMERICA, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chicago Growth Group
Facsimile number: 312/974-2108
CONSENT AND RATIFICATION
Dated as of December 29, 2000
The undersigned hereby acknowledges receipt of a copy of the foregoing
Amendment, consents to all the terms and provisions thereof, and ratifies and
confirms all the terms and provisions of each Related Agreement and of each Bond
Document to which it is a party.
ELXSI CORPORATION
By:________________________________
Its:_______________________________
SUPPLEMENT A
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 29, 1996, as amended,
Between ELXSI, ▇▇▇▇▇▇▇▇'▇ HOLDINGS COMPANY, INC.
▇▇▇▇▇▇▇▇'▇ FAMILY RESTAURANTS, INC. and
BANK OF AMERICA, N.A.
1. LOAN AGREEMENT REFERENCE. This SUPPLEMENT A, as it may be amended or
modified from time to time, is a part of the Amended and Restated Loan and
Security Agreement, dated as of December 29, 1996, between Borrower and Lender
(together with all amendments, restatements, supplements and other modifications
thereto, the "LOAN AGREEMENT"). Terms used and not defined herein which are
defined in the Loan Agreement shall have the meaning ascribed to them therein
unless the context requires otherwise.
2. ADDITIONAL COVENANTS. Until all of Borrower's Liabilities are paid in full,
Borrower agrees that, unless Lender otherwise consents in writing, it will:
SECTION 2.1. FUNDED DEBT TO EBITDA RATIO. MAINTAIN A RATIO OF FUNDED DEBT
TO EBITDA NOT EXCEEDING 2.25:1.0. THIS RATIO WILL BE CALCULATED AT THE END OF
EACH FISCAL QUARTER, USING THE RESULTS OF THAT QUARTER AND EACH OF THE 3
IMMEDIATELY PRECEDING QUARTERS.
"Funded Debt" means all outstanding indebtedness of Borrower for borrowed money
and other interest-bearing indebtedness, including current and long term
indebtedness other than indebtedness subordinated to the term loan hereunder on
terms and conditions satisfactory to the Bank and excluding intercompany debt.
"EBITDA" means the sum of net income before taxes, plus interest expense, plus
depreciation, depletion, amortization and other non-cash charges, and excluding
other income and expense and extraordinary items, determined for Borrower on a
consolidated basis.
SECTION 2.2 FIXED CHARGE COVERAGE RATIO. MAINTAIN A FIXED CHARGE COVERAGE
RATIO OF AT LEAST 1.25:1.0. THIS RATIO WILL BE CALCULATED AT THE END OF EACH
FISCAL QUARTER, COMMENCING WITH THE FIRST FISCAL QUARTER OF FISCAL YEAR 2001.
DURING FISCAL YEAR 2001, THE FIXED CHARGE COVERAGE RATIO SHALL BE DETERMINED FOR
THE PERIOD FROM THE FIRST DAY OF SUCH FISCAL YEAR THROUGH THE DATE OF
DETERMINATION, TAKING SUCH PERIOD AS ONE (1) ACCOUNTING PERIOD, AND AFTER FISCAL
YEAR 2001, THE FIXED CHARGE COVERAGE RATIO SHALL BE DETERMINED FOR THE FOUR (4)
CONSECUTIVE FISCAL QUARTERS ENDING ON THE DATE OF DETERMINATION, TAKING SUCH
PERIOD AS ONE (1) ACCOUNTING PERIOD.
"Fixed Charge Coverage Ratio" means the ratio of (a) the sum of EBITDA, plus
operating rent expenses, less capital expenditures, and less taxes paid, to (b)
the sum of interest paid, plus operating rent expenses, plus capital lease
payments, plus principal installments payable under this Agreement, determined
for Borrower on a consolidated basis.
SECTION 2.3 CAPITAL EXPENDITURES. Not, and not permit any Subsidiary to,
purchase or otherwise acquire (including, without limitation, acquisition by way
of Capitalized Lease), or commit to purchase or otherwise acquire, any fixed
asset if, after giving effect to such purchase or other acquisition, (A) the
aggregate capitalized cost of all fixed assets purchased or otherwise acquired
(other than by means of a Capitalized Lease) by Borrower and its Subsidiaries on
a consolidated basis plus (B) the aggregate annual payments under Capitalized
Leases (excluding the portion thereof representing imputed interest) of Borrower
and its Subsidiaries on a consolidated basis (excluding, in each of (A) and (B),
(a) any fixed asset which constitutes a replacement for an asset which was the
subject of a casualty or governmental taking to the extent the purchase or other
acquisition thereof is funded by insurance proceeds or other payments received
as a result of such casualty or taking and (b) the first $675,000 of capital
expenditures related solely to removal of underground storage tanks or other
environmental problems at Borrower's restaurant locations) would exceed (i)
$6,660,000 for Fiscal Year 2000, and (ii) $5,000,000 for each Fiscal Year
thereafter, all on a noncumulative basis.