Exhibit 4.1
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SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), is dated as of June 30, 2004, by and among XXXXX
FARGO FOOTHILL, INC. ("Lender"), ELXSI, a California corporation ("Parent"),
ELXSI (NEW HAMPSHIRE), INC., a Delaware corporation ("ELXSI NH"), XXXXXXXX'X
RESTAURANTS, LLC, a Delaware limited liability company ("Xxxxxxxx'x LLC"),
XXXXXXXX'X HOLDINGS COMPANY, INC., a Delaware corporation ("Holdings"), and
XXXXXXXX'X FAMILY RESTAURANTS, INC., a Delaware corporation ("Xxxxxxxx'x";
Parent, ELXSI NH, Xxxxxxxx'x LLC, Holdings and Xxxxxxxx'x are referred to
hereinafter each individually as a "Borrower", and individually and
collectively, jointly and severally, as the "Borrowers").
WITNESSETH:
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WHEREAS, Borrowers and Lender entered into that certain Amended and
Restated Loan and Security Agreement, dated as of January 30, 2004, as amended
by First Amendment to Amended and Restated Loan and Security Agreement (the
"First Amendment"), dated as of April 21, 2004, among Borrowers and Lender (as
amended, restated, supplemented or otherwise modified through the date hereof,
the "Loan Agreement");
WHEREAS, Borrowers have requested that the Lender waive noncompliance
with certain covenants of the Loan Agreement and agree to certain amendments of
the Loan Agreement as more fully set forth herein;
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 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.
SECTION 2. Amendments. Upon the Second Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as follows:
(a) The following definitions in Section 1.1 of the Loan
Agreement are hereby deleted in their entirety and replaced with the
following:
"'Applicable Multiplier' means, for any date of
determination, the number set forth below opposite the
applicable period in which such date falls:
----------------------- ------------------------------------------------
Applicable Multiplier Applicable Period
----------------------- ------------------------------------------------
2.75 Closing Date through and including
December 30, 2004
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2.50 December 31, 2004, through and including
June 29, 2005
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2.25 June 30, 2005, through and including
December 30, 2005
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2.00 December 31, 2005, and thereafter
----------------------- ------------------------------------------------
"'Borrowing Base' means, as of any date of
determination, the result (rounded to the nearest
$50,000) of (a) the Applicable Multiplier times EBITDA
for the twelve-month period ending on the last day of the
most recent month for which Borrowers have provided
Lender a Borrowing Base calculation pursuant to Section
6.2 hereof, minus (b) the unpaid principal balance of
Term Loan A as of such date of determination.
"'EBITDA' means, with respect to any fiscal
period, Parent's and its Subsidiaries' consolidated net
earnings (or loss), minus extraordinary gains, gains on
real estate sales and interest income, plus non-recurring
extraordinary losses, losses on real estate sales,
interest expense, income taxes, and depreciation and
amortization for such period, as determined in accordance
with GAAP. For purposes of this definition, net earnings
(or loss) shall be determined without deducting any fees
paid by any of the Borrowers to Lender pursuant to
Section 2.11(c) and (e) hereof, Section 5(c) of the First
Amendment or Section 3 of the Second Amendment.
"'Maximum Revolver Amount' means $7,000,000, as
such amount may be reduced from time to time in
accordance with Section 2.1(g).
"'Term Loan B Amount' means $3,300,000.
"'Term Loan B Maturity Date' means December 31,
2006."
(b) The following definitions are hereby added to Section
1.1 of the Loan Agreement to be placed in a manner that maintains
alphabetical order:
"'First Amendment' means the First Amendment to
the Amended and Restated Loan and Security Agreement,
among the Borrowers and Lender, dated as of April 21,
2004.
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"'Second Amendment' means the Second Amendment
to the Amended and Restated Loan and Security Agreement,
among the Borrowers and Lender, dated as of June 30,
2004.
"'Second Amendment Effective Date' means the
Second Amendment Effective Date (as defined in the Second
Amendment."
"'Term Loan B Leverage Ratio' means for the
twelve-month period ending on the last day of any month,
the ratio of (a) the unpaid principal amount of Term Loan
A, plus the unpaid principal amount of Term Loan B, plus
the unpaid principal amount of Revolver Usage, as
determined on such day, to (b) EBITDA for such period."
(c) Clause (iv) in Section 2.1(b) of the Loan Agreement
is hereby amended to read in its entirety as follows:
"(iv) a reserve in the amount by which the sum of (1) the
unpaid principal amount of Revolver Usage, plus (2) the
unpaid principal balance of Term Loan A, plus (3) the unpaid
principal balance of Term Loan B, exceeds the product of the
Term Loan B Leverage Ratio times EBITDA for the twelve-month
period ending on the last day of the most recently ended
calendar month (rounding such product to the nearest
$100,000) for which Borrowers have provided financial
statements to Lender in accordance with Section 6.3(a)."
(d) Section 2.2 of the Loan Agreement is hereby amended
to read in its entirety as follows:
"2.2 Term Loans.
(a) Subject to the terms and conditions of this
Agreement, on the Closing Date Lender converted a portion of
the Advances outstanding on the Closing Date to a term loan
("Term Loan A") to Borrowers in an amount equal to the Term
Loan A Amount. As of June 30, 2004, the unpaid principal
balance of Term Loan A was $3,703,088.79. Borrowers, jointly
and severally, promise to pay to the order of Lender Term Loan
A as follows: (i) in consecutive monthly principal payments in
the amount of $125,000 each due on the first day of each
month, commencing Xxxxx 0, 0000, (xx) in additional principal
payments on the fifteenth day of each February, May, August,
and November, commencing November 15, 2004, in the amount, if
any, that (A) the unpaid principal balance of Term Loan A on
the last day of the most recently ended calendar quarter,
exceeds (B) the amount by which (x) the product of the
Applicable Multiplier for such date times EBITDA for the
twelve-month period ending on the last day of the most
recently ended calendar quarter (rounding such product to the
nearest $100,000), exceeds (y) the unpaid principal amount of
Revolver Usage, and (iii) all unpaid principal of, and
interest on, Term Loan A shall be paid in full on the earlier
of the Maturity Date or the date of termination of this
Agreement, whether by its terms, by prepayment, or by
acceleration; provided, that if at any
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time, the unpaid principal amount of Revolver Usage exceeds
the Applicable Multiplier times EBITDA for the twelve-month
period ending on the last day of the most recently ended
calendar quarter (rounding such product to the nearest
$100,000), then all unpaid principal of, and interest on, Term
Loan A shall be immediately due and payable.
(b) As of June 29, 2004, the unpaid principal
balance of Term Loan B was $0. Subject to the terms and
conditions of this Agreement, on the Second Amendment
Effective Date, Lender agrees to convert $3,300,000 of the
Advances outstanding on the Second Amendment Effective Date to
a term loan ("Term Loan B") to Borrowers. Term Loan B shall be
increased on the Second Amendment Effective Date by an amount
equal to $320,000 (the sum of the Term Loan Paydown Fee, Term
Loan Payoff Fee and the Term Loan B Fee described in the
Second Amendment). Borrowers, jointly and severally, promise
to pay to the order of Lender, Term Loan B as follows: (i) in
a principal payment in the amount of $500,000 on September 30,
2004, (ii) in a principal payment in the amount of $300,000 on
November 30, 2004, (iii) in a principal payment in the amount
of $500,000 on each of January 31, 2005, April 30, 2005, July
31, 2005, October 31, 2005, and December 31, 2005, (iv) in
additional principal payments on the fifteenth day of August,
November, January and May of each year, commencing November
15, 2004, in the amount, if any, that (A) the unpaid principal
balance of Term Loan B on the last day of the most recently
ended calendar quarter, exceeds (B) the amount by which (x)
the product of the Term Loan B Leverage Ratio times EBITDA for
the twelve-month period ending on the last day of the most
recently ended calendar quarter (rounding such product to the
nearest $100,000), exceeds (y) the sum of (1) the unpaid
principal amount of Revolver Usage, plus (2) the unpaid
principal balance of Term Loan A, and (v) all unpaid principal
of, and accrued, but unpaid interest on, Term Loan B shall be
paid in full on the earlier of the Term Loan B Maturity Date
or the date of termination of this Agreement, whether by its
terms, by prepayment, or by acceleration; provided, that if,
at any time, the sum of the unpaid principal amount of
Revolver Usage plus the unpaid principal balance of Term Loan
A exceeds the product of the Term Loan B Leverage Ratio times
EBITDA for the twelve-month period ending on the last day of
the most recently ended calendar quarter (rounding such
product to the nearest $100,000), then all unpaid principal
of, and interest on, Term Loan B shall be immediately due and
payable.
(c) All amounts outstanding under the Term Loans
shall constitute Obligations."
(e) Section 2.4(b)(v) of the Loan Agreement is hereby
amended to read in its entirety as follows:
"(v) All net cash proceeds from Asset Sales shall
be applied as follows:
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A. first, to prepayment of unpaid
installments of principal of Term Loan B, in the
order of maturity, until an aggregate amount of
$500,000 of net cash proceeds from Asset Sales
received after the Second Amendment Effective Date
shall have been so applied,
B. second, to prepayment of unpaid
installments of principal of Term Loan A, in the
inverse order of maturity, until an aggregate amount
of $1,500,000 of net cash proceeds from Asset Sales
received after the Second Amendment Effective Date
shall have been so applied,
C. third, to prepayment of (1) unpaid
installments of principal of Term Loan B, in the
order of maturity, to the extent of not less than
two-thirds of net cash proceeds from Asset Sales
received after application of Section 2.4(b)(v)(A)
and (B), until the unpaid principal of Term Loan B is
reduced to $100,000, and (2) unpaid installments of
principal of Term Loan A, in the inverse order of
maturity, to the extent of any remaining net cash
proceeds from Asset Sales received after application
of Section 2.4(b)(v)(A) and (B) and (C)(1), until
Term Loan A is paid in full, and
D. fourth, to prepayment of unpaid principal
of Advances and the Maximum Revolver Amount shall be
permanently reduced by the amount of the net cash
proceeds from Asset Sales to the extent not applied
to payment of Term Loans; provided however, that any
permanent reduction of the Maximum Revolver Amount
pursuant to this Section 2.4(b)(v) shall not be
subject to any Applicable Prepayment Premium."
(f) Section 2.11(e) of the Loan Agreement is hereby
deleted and replaced in its entirety as follows:
"(e) Intentionally Blank; and"
(g) Section 7.18(a) of the Loan Agreement is hereby
amended to read as follows:
"(a) Fail to maintain or achieve:
(i) Minimum EBITDA. EBITDA for the twelve-month
period ended on the last day of each month set forth below,
measured on a month-end basis, of at least the required amount
set forth in the following table:
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------------------ -------------------------------------------------------------
Minimum Amount For the 12-month period ended at the end of
------------------ -------------------------------------------------------------
$2,628,000 June, 2004
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$2,280,000 July, 2004
------------------ -------------------------------------------------------------
$2,319,000 August, 2004
------------------ -------------------------------------------------------------
$2,234,000 September, 2004
------------------ -------------------------------------------------------------
$2,155,000 October, 2004
------------------ -------------------------------------------------------------
$2,202,000 November, 2004
------------------ -------------------------------------------------------------
$2,429,000 December, 2004, January, 2005, and February, 2005
------------------ -------------------------------------------------------------
$2,500,000 March, 2005, April, 2005, and May, 2005
------------------ -------------------------------------------------------------
$2,600,000 June, 2005, July, 2005, and August, 2005
------------------ -------------------------------------------------------------
$2,700,000 September, 2005, October, 2005, and November, 2005
------------------ -------------------------------------------------------------
$2,800,000 December, 2005, and each month thereafter
------------------ -------------------------------------------------------------
(ii) Minimum Xxxxxxxx'x EBITDA. Xxxxxxxx'x
EBITDA, measured on a month-end basis, of at least the
required amount set forth in the following table for the
applicable period set forth opposite thereto:
------------------ -------------------------------------------------------------
Minimum Amount Applicable Period
------------------ -------------------------------------------------------------
$ (173,000) January 1, 2004, through and including June 30, 2004
------------------ -------------------------------------------------------------
$ 111,000 January 1, 2004, through and including July 31, 2004
------------------ -------------------------------------------------------------
$ 500,000 January 1, 2004, through and including August 31, 2004
------------------ -------------------------------------------------------------
$ 670,000 January 1, 2004, through and including September 30, 2004
------------------ -------------------------------------------------------------
$ 830,000 January 1, 2004, through and including October 31, 2004
------------------ -------------------------------------------------------------
$ 900,000 January 1, 2004, through and including November 30, 2004
------------------ -------------------------------------------------------------
$ 955,000 Twelve-month period ended at December 31, 2004
------------------ -------------------------------------------------------------
$1,000,000 Twelve-month period ended at each of March 31, 2005,
April 30, 2005, and May 31, 2005
------------------ -------------------------------------------------------------
$1,050,000 Twelve-month period ended at each of June 30, 2005,
July 31, 2005, and August 31, 2005
------------------ -------------------------------------------------------------
$1,100,000 Twelve-month period ended at each of September 30, 2005,
October 31, 2005, and November 30, 2005
------------------ -------------------------------------------------------------
$1,150,000 Twelve-month period ended at December 31, 2005, and
twelve-month period ended at the end of each month thereafter
------------------ -------------------------------------------------------------
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(iii) Leverage Ratio. Leverage Ratio, as of the
last day of each month occurring during the applicable period
set forth opposite thereto, less than or equal to the
following:
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Applicable Ratio Applicable Period
------------------ -------------------------------------------------------------
3.50 June 30, 2004, through and including July 30, 2004
------------------ -------------------------------------------------------------
4.10 July 31, 2004, through and including August 30, 2004
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3.00 August 31, 2004, through and including September 29, 2004
------------------ -------------------------------------------------------------
2.75 September 30, 2004, through and including December 30, 2004
------------------ -------------------------------------------------------------
2.50 December 31, 2004, through and including June 29, 2005
------------------ -------------------------------------------------------------
2.25 June 30, 2005, through and including December 30, 2005
------------------ -------------------------------------------------------------
2.00 December 31, 2005, and thereafter
------------------ -------------------------------------------------------------
(iv) Term Loan B Leverage Ratio. Term Loan B
Leverage Ratio, as of the last day of each month occurring
during the applicable period set forth opposite thereto, less
than or equal to the following:
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------------------ -------------------------------------------------------------
Applicable Ratio Applicable Period
------------------ -------------------------------------------------------------
4.25 June 30, 2004, through and including September 29, 2004
------------------ -------------------------------------------------------------
3.75 September 30, 2004, through and including December 30, 2004
------------------ -------------------------------------------------------------
3.50 December 31, 2004, through and including March 30, 2005
------------------ -------------------------------------------------------------
3.00 March 31, 2005, through and including June 29, 2005
------------------ -------------------------------------------------------------
2.75 June 30, 2005, through and including December 30, 2005
------------------ -------------------------------------------------------------
2.50 December 31, 2005, and thereafter"
------------------ -------------------------------------------------------------
(h) Schedule 3 to the form of Compliance Certificate
attached as Exhibit C-1 to the Loan Agreement is hereby replaced with
the Schedule 3 attached hereto and made a part hereof.
SECTION 3. Fees. In addition to the fees payable under the Loan
Agreement, as amended hereby, and under the First Amendment, Borrowers shall pay
to Lender the following fees and charges, which fees and charges shall be
non-refundable (except as otherwise expressly provided in this Section 3) when
paid (irrespective of whether this Second Amendment is terminated thereafter):
(a) Second Amendment Fee. A fee in the amount of $50,000
shall be earned and due and payable on the Second Amendment Effective
Date, and Lender is hereby authorized to make an Advance in such amount
to pay such fee in full on the Second Amendment Effective Date.
(b) Term Loan Paydown Fee. A fee in the amount of $20,000
shall be earned and due and payable on the Second Amendment Effective
Date, and Lender is hereby authorized to add the unpaid portion of such
fee to Term Loan B.
(c) Term Loan Payoff Fee. A fee in the amount of $100,000
shall be paid on the Second Amendment Effective Date, and Lender is
hereby authorized to add the unpaid portion of such fee to Term Loan B;
provided, that if all Obligations have been paid in full and Lender's
obligations to provide additional credit under the Loan Agreement shall
have been terminated on or before June 30, 2005, then such fee shall be
rebated to Borrowers.
(d) Term Loan B Fee. A fee in the amount of $200,000
shall be paid on the Second Amendment Effective Date, and Lender is
hereby authorized to add the unpaid portion of such fee to Term Loan B,
subject to being rebated according to the following schedule:
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(i) if Term Loan B is repaid in full on or
before September 30, 2004, then $200,000 shall be rebated to
Borrowers;
(ii) if Term Loan B is repaid in full on or
before October 31, 2004, then $150,000 shall be rebated to
Borrowers; or
(iii) if Term Loan B is repaid in full on or
before December 31, 2004, then $100,000 shall be rebated to
Borrowers.
SECTION 4. Waivers. On the Second Amendment Effective Date, and in
accordance with Section 15.1 of the Loan Agreement, Lender waives the Borrowers'
noncompliance with the following Sections of the Loan Agreement:
(a) Section 7.18(a)(i) for all periods ended on or before
May 31, 2004; Section 7.18(a)(ii) for all periods ended on or before
May 31, 2004; and Section 7.18(a)(iii) for all periods ended on or
before May 31, 2004; and
(b) Section 4(e) of the First Amendment.
SECTION 5. Representations, Warranties and Covenants of the Borrowers.
Each of the Borrowers represents and warrants to the Lender, and agrees that:
(a) the representations and warranties contained in the
Loan Agreement (as amended hereby) and the other outstanding Loan
Documents 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 (i)
to the extent specifically made with regard to a particular date and
(ii) for such changes as are a result of any act or omission
specifically permitted under the Loan Agreement (or under any Loan
Document), or as otherwise specifically permitted by the Lender;
(b) on the Second Amendment Effective Date, after giving
effect to this Amendment, no 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 Borrowers, and this
Amendment is a legal, valid and binding obligation of the Borrowers
enforceable against each 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); and
(d) the execution, delivery and performance of this
Amendment does not conflict with or result in a breach by any Borrower
of any term of any material contract, loan agreement, indenture or
other agreement or instrument to which such Borrower is a party or is
subject.
9
(e) On or before September 15, 2004, ELXSI shall deliver
to Lender (i) a certified copy of the Lincolnshire Lease (as defined in
the First Amendment), and (ii) a landlord's waiver and consent from the
landlord of the Lincolnshire Lease acknowledging the security interest
granted to Lender in the property of ELXSI located on the premises
covered by the Lincolnshire Lease and waiving any statutory landlord's
lien against such property.
(f) Within thirty (30) days after the last day of each
month, ELXSI shall deliver to Lender an Asset Sale Progress Report,
providing commentary on the current status of proposed real estate
sales and leasebacks, including location, timing, prospective buyers
expressing interest, anticipated closing dates, prospective or agreed
sales prices, and material issues relating to such property or sales
thereof.
SECTION 6. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective (the "Second Amendment Effective Date") upon
satisfaction of each of the following conditions:
(a) The Borrowers, Lender and Parent shall have executed
and delivered to Lender this Amendment and such other documents as the
Lender may reasonably request.
(b) All legal matters incident to the transactions
contemplated hereby shall be reasonably satisfactory to counsel for the
Lender.
(c) In consideration of Lender's execution and delivery
of this Amendment, Borrowers shall pay to Lender the fees described in
Section 3 hereof, which fees shall be earned by Lender upon the
execution by Lender of a counterpart of this Amendment.
SECTION 7. Breach of this Amendment. Default in the performance by any
Borrower of any of Borrower's agreements set forth herein and continuance of
such default for three (3) Business Days after notice thereof to Borrower from
Lender shall constitute an Event of Default under the Loan Agreement.
SECTION 8. 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 9. Costs and Expenses. The Borrower hereby affirms its
obligation under the Loan Agreement to reimburse Lender for all reasonable
costs, internal charges and out-of-pocket expenses paid or incurred by Lender in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including but not limited to the attorneys' fees and time charges of
attorneys for Lender with respect thereto.
SECTION 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUCTED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
10
SECTION 11. Effect of Amendment; Reaffirmation of Loan Documents.
----------------------------------------------------
(a) 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
outstanding Loan Documents other than as expressly set forth herein and
(ii) the Loan Agreement (as amended hereby) and each of the other
outstanding Loan Documents remain and continue in full force and effect
and are hereby ratified and reaffirmed in all respects. Upon the
effectiveness of this Amendment, each reference in the Loan Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of
similar import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) The consents and waivers agreed to herein (i) are
strictly limited to the transactions expressly referenced and, except
as expressly set forth herein, all the other terms, provisions and
conditions of the Loan Agreement shall remain in full force and effect,
(ii) shall not extend nor be deemed to extend to any other Event of
Default or Default that may now exist or hereafter arise under the Loan
Agreement or any of the other Loan Documents, whether similar or
dissimilar to the matters waived herein, (iii) shall not impair,
restrict or limit any right or remedy of the Lender with respect to any
other Default or Event of Default that may now exist or hereafter arise
under the Loan Agreement or any of the other Loan Documents, and (iv)
shall not constitute any course of dealing or other basis for altering
any obligation of the Borrowers or any right, privilege or remedy of
the Lender under the Loan Agreement or any of the other Loan Documents.
SECTION 12. Headings. Section headings in this Amendment are included
herein for convenience of any reference only and shall not constitute a part of
this Amendment for any other purposes.
SECTION 13. Release. EACH BORROWER HEREBY ACKNOWLEDGES THAT AS OF THE
DATE HEREOF IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE LIABILITIES OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER OR ITS
AFFILIATES, PARTICIPANTS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES OR ATTORNEYS. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES
AND FOREVER DISCHARGES LENDER, AND ITS AFFILIATES AND PARTICIPANTS, AND ITS
PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH ANY BORROWER MAY NOW OR HEREAFTER HAVE AGAINST
LENDER, ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
11
CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM
THE LIABILITIES, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN
AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS
AMENDMENT. EACH BORROWER HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY
ACTION OR SUIT AT LAW OR IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID
IN THE INSTITUTION OR PROSECUTION OF ANY CLAIM, ACTION OR CAUSE OF ACTION,
RIGHTS TO RECOVER DEBTS OR DEMANDS OF ANY NATURE AGAINST LENDER, ITS AFFILIATES,
AND PARTICIPANTS, AND THEIR RESPECTIVE SUCCESSORS, AGENTS, ATTORNEYS, OFFICERS,
DIRECTORS, EMPLOYEES, AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR
BEFORE THE DATE HEREOF OUT OF OR RELATED TO LENDERS' ACTIONS, OMISSIONS,
STATEMENTS, REQUESTS OR DEMANDS IN ADMINISTERING, ENFORCING, MONITORING,
COLLECTION OR ATTEMPTING TO COLLECT THE INDEBTEDNESS OF BORROWER TO LENDER,
WHICH INDEBTEDNESS WAS EVIDENCED BY THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS.
[Signature Pages Follow]
12
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,
a California corporation
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Title: Vice President
ELXSI (NEW HAMPSHIRE), INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Title: Vice President
XXXXXXXX'X RESTAURANTS, LLC,
a Delaware limited liability company
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Title: Vice President
XXXXXXXX'X HOLDINGS COMPANY, INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Title: Vice President
XXXXXXXX'X FAMILY RESTAURANTS, INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Title: Vice President
XXXXX FARGO FOOTHILL, INC.,
a California corporation
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Title: Vice President
13
ACKNOWLEDGMENT AND RATIFICATION
The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Second Amendment to Amended and Restated Loan and Security Agreement,
(ii) consents to all of the terms and provisions thereof, (iii) ratifies and
confirms all of the terms and provisions of the outstanding Loan Documents to
which it is a party; and (iv) acknowledges and agrees that all references in the
outstanding Loan Documents to any loan or credit agreement executed by and
between any of the Borrowers and Lender shall refer without further amendment to
the Loan Agreement as amended by the foregoing Amendment.
ELXSI CORPORATION
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
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SCHEDULE 3
[to Compliance Certificate (Exhibit C-1)]
1. Minimum EBITDA. Borrowers' EBITDA for the twelve-month period
ending _________, 20___ is $________________, which amount [is/is not] greater
than or equal to the amount set forth in Section 7.18(a)(i) of the Loan
Agreement for the corresponding period.
2. Minimum Xxxxxxxx'x EBITDA. Xxxxxxxx'x EBITDA for the period
from ____________, 20___, to _______________, 20___, is $_______________, which
amount [is/is not] greater than or equal to the amount set forth in Section
7.18(a)(ii) of the Loan Agreement for the corresponding period.
3. Leverage Ratio.
--------------
(a) The Leverage Ratio of Borrowers, as of the last day of the
fiscal quarter ending ______________, 20___, is calculated as follows:
(i) The unpaid principal amount of Term
Loan A and the unpaid principal amount of Revolver Usage
on such date is: $__________
(ii) Borrower's EBITDA for the twelve-month
period ending on such day is: $__________
(iii) Item (i) divided by Item (ii)
(=Leverage Ratio) is: ___________
(b) The Leverage Ratio set forth above [is/is not] less than or
equal to the amount set forth in Section 7.18(a)(iii) of the Loan Agreement for
the corresponding period.
4. Term Loan B Leverage Ratio.
--------------------------
(a) The Term Loan B Leverage Ratio of Borrowers, as of the last
day of the fiscal quarter ending ______________, 20___, is calculated as
follows:
(i) The unpaid principal amount of Term
Loan A and the unpaid principal amount of Revolver Usage
on such date is: $__________
(ii) The unpaid principal amount of Term
Loan B on such date is: $__________
(iii) Borrower's EBITDA for the twelve-month
period ending on such day is: $__________
(iv) The sum of Item (i) and Item (ii)
divided by Item (iii) (=Term Loan B Leverage Ratio) is:
___________
(b) The Term Loan B Leverage Ratio set forth above [is/is not]
less than or equal to the amount set forth in Section 7.18(a)(iv) of the Loan
Agreement for the corresponding period.
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4. Maximum Capital Expenditures.
----------------------------
(a) The aggregate amount of capital expenditures made to date in
the current fiscal year is $_____________
(b) The aggregate amount set forth above [is/is not] more than or
equal to the amount set forth in Section 7.18(b)(i) of the Loan Agreement for
the corresponding period.
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