THIRD AMENDMENT
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of January 25, 1995 between ELXSI, a
California corporation ("Borrower"), and BANK OF AMERICA ILLINOIS (formerly
Continental Bank N.A.) ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to an Amended and Restated Loan
and Security Agreement dated as of October 30, 1992 (as heretofore amended, the
"Loan Agreement"); and
WHEREAS, Borrower desires Lender to amend the Loan Agreement in certain
respects.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
Terms defined in the Loan Agreement and not otherwise defined herein are
used herein as therein defined.
SECTION 2. AMENDMENTS TO LOAN AGREEMENT.
2.1. The definition of "Revolving Credit Amount" in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its entirety as
follows:
"Revolving Credit Amount" means, from and after January 25,
1995, $12,580,000, as adjusted after such date pursuant to this Agreement,
including pursuant to Sections 2.1.3 and 2.1.4.
2.2. Section 5.13 of the Loan Agreement is hereby amended by (i) deleting
the word "and" prior to clause (d) of the proviso to the first sentence of such
Section, (ii) adding the following at the end of such first sentence 11; and (e)
so long as no Event of Default or Unmatured Event of Default exists or would
result therefrom, in January, 1995 Borrower may pay to Parent dividends in an
aggregate amount not to exceed $1,224,000, the proceeds of which will be used by
Parent solely to purchase 240,000 shares of its common stock from Morgens
Waterfall Vintaidis & Co. (and/or one or more entities affiliated therewith) and
(iii) deleting the words "clause (a), (b) or (c)" from the last sentence of such
Section and inserting the words "clause (a), (b), or (c) or (d)" in lieu
thereof.
SECTION 3. CONDITIONS PRECEDENT.
The amendment to the Loan Agreement set forth in Section 2 of this
Amendment shall become effective on such date (the "Effective Date") when the
following conditions precedent have been satisfied:
3.1. Receipt of Documents. Lender shall have received all
of the following, each duly executed and dated the date hereof,
in form and substance satisfactory to Lender:
(a) Amendment. An original of this Amendment duly
executed by Borrower.
(b) Certificate. A certificate, dated the date hereof and signed by
the President or a Vice President of Borrower, as to the matters set
forth in Section 3.2.
(c) Opinion. An opinion of Dechert Price & Xxxxxx,
counsel to Borrower, in form and substance satisfactory
to Lender.
(d) Other. Such other documents as Lender may
reasonably request.
3.2. Warranties True and Absence of Defaults. (i) No Event of Default or
Unmatured Event of Default shall have occurred and shall be continuing as of the
Effective Date (after giving effect to this Amendment) and (ii) the warranties
of Borrower contained in Section 4 of the Loan Agreement shall be true and
correct as of the Effective Date, with the same effect as though made on such
date (except (x) to the extent changed by circumstances permitted by the Loan
Agreement, and (y) for such warranties which relate solely to an earlier date
and were true and correct on and as of such date).
3.3. Fee. Lender shall have received from Borrower a non-
refundable amendment fee of $25,000.
SECTION 4. MISCELLANEOUS.
4.1. Warranties True and Absence of Defaults. In order to
induce Lender to enter into this Amendment, Borrower hereby
warrants to Lender that, as of the date hereof and the Effective
Date:
(a) The warranties of Borrower contained in Section 4 of the Loan
Agreement are true and correct as of the date hereof and the
Effective Date (after giving effect to this Amendment) with the same
effect as though made on each such date (except (x) to the extent
changed by circumstances permitted by the Loan Agreement and (y)
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for such warranties which relate solely to a specific earlier date
and were true and correct as of such date).
(b) No Event of Default or Unmatured Event of Default exists as of
each such date.
4.2. Expenses. Borrower agrees to pay on demand all costs and expenses of
Lender (including the reasonable fees, charges and expenses of counsel for
Lender) in connection with the preparation, negotiation, execution, delivery and
administration of this Amendment and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
In addition, Borrower agrees to pay, and save Lender harmless from all liability
for, any documentary, stamp or other similar taxes which may be payable in
connection with the execution or delivery of this Amendment, the borrowings
under the Loan Agreement, as amended hereby, and the execution and delivery of
any instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided in this Section
4.2 shall survive any termination of this Amendment or the Loan Agreement as
amended hereby.
4.3. Governing Law. This Amendment shall be a contract
made under and governed by the internal laws of the State of
Illinois.
4.4. Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when so executed and delivered, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
4.5. Reference to Loan Agreement. Except as amended hereby, the Loan
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. On and after the effectiveness of the amendment to
the Loan Agreement accomplished hereby, each reference in the Loan Agreement to
"this Agreement," "hereunder," "hereof," "herein" or words of like import, and
each reference to the Loan Agreement in any Note and in any Related Agreement,
or other agreements, documents or instruments executed and delivered pursuant to
the Loan Agreement, shall be deemed a reference to the Loan Agreement, as
amended hereby.
4.6. Successors. This Amendment shall be binding upon the
parties hereto and their successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
ELXSI
By: ____________________________
Title: ________________________
BANK OF AMERICA ILLINOIS
(formerly Continental Bank N.A.)
By: ____________________________
Title: ________________________
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