Exhibit 4.25
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SEVENTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of August 23, 2001 (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"), XXXXXXXX'X HOLDINGS
COMPANY, INC., a Delaware corporation ("Holdings"), and XXXXXXXX'X FAMILY
RESTAURANTS, INC., a Delaware corporation ("Xxxxxxxx'x") (ELXSI, Holdings and
Xxxxxxxx'x being, collectively, the "Borrower").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower is party to that certain Amended and Restated Loan and
Security Agreement, dated as of December 30, 1996 (the "Loan Agreement"), as the
same has been amended through the Sixth Amendment, dated as of May 15, 2001; and
WHEREAS, Borrower has requested that the Lender consent to certain
amendments and waivers 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 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.
SECTION 2. Amendments and Consents. On the Effective Date,
(a) Lender hereby (A) consents to extend the time to deliver the
mortgages, landlord's waivers, ALTA title insurance policy and
certificate of the chief financial officer under Sections 13 (a),
(b), (c) and (e), respectively, of the Fifth Amendment, dated as of
December 29, 2000 (the "Fifth Amendment"), until October 31, 2001;
(b) Effective July 1, 2001, 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 2.25% and for Terms Loans shall be 2.50%;
(c) 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; and
(d) Section 2.2(a)(i)(B) of the Loan Agreement shall be amended by
deleting the number "$1,500,000" appearing therein and substituting
in lieu thereof the number "2,000,000".
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SECTION 3. Waivers. On the Effective Date, the Lender hereby waives any
breach of: (i) Section 2.2 of Supplement A to the Loan Agreement for the second
fiscal quarter of Borrower's Fiscal Year - 2001, and (ii) Sections 13(a), (b),
(c) and (e) of the Fifth Amendment prior to the Effective Date, provided that
Borrower shall use due diligence to satisfy such requirements prior to October
31, 2001, and in any event failure to comply with Sections 13(a), (b), (c) and
(e) of the Fifth Amendment by October 31, 2001 shall constitute an Event of
Default under the Loan Agreement.
SECTION 4. 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;
(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); and
(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.
SECTION 5. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective (the "Effective Date") upon satisfaction of the
following:
(a) the Lender, Borrower and Parent shall have executed and delivered
this Amendment;
(b) the Borrower shall have paid, in immediately available funds, to
Lender a fully earned and nonrefundable amendment fee of $2,500;
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(c) the fees and expenses of Lender's counsel invoiced through the date
hereof shall have been paid in full in immediately available funds.
SECTION 6. 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 7. 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 8. 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 9. Bond Documents. On the Effective Date, the Bond Documents (as
defined in the Fifth Amendment) shall be deemed waived and amended to the extent
necessary and applicable to conform them to the terms, provisions and conditions
of Sections 2 and 3 hereof.
SECTION 10. 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]
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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
first written above.
ELXSI
By:_________________________________
Name:_______________________________
Title:______________________________
Address: 0000 Xxx Xxxxx Xxxxxx
Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 407/849-0625
XXXXXXXX'X HOLDINGS COMPANY, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 617/787-1620
XXXXXXXX'X FAMILY RESTAURANTS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 617/787-1620
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BANK OF AMERICA, N.A.
By:_________________________________
Name:_______________________________
Title:______________________________
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 312/974-2108
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CONSENT AND RATIFICATION
Dated as of August 23, 2001
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:__________________________________
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SUPPLEMENT A
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 30, 1996, as amended,
Between ELXSI, XXXXXXXX'X HOLDINGS COMPANY, INC.
XXXXXXXX'X 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 30, 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 third fiscal quarter of Fiscal Year 2001.
The Fixed Charge Coverage Ratio shall be determined for the period from the
first day of the third fiscal quarter of Fiscal Year 2001 through the date of
determination, taking such period as one (1) accounting period, and after the
end of the third fiscal quarter in Fiscal Year 2002, 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, less taxes paid and less
payments made under Section 5.13 of the Agreement to the Parent, 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.
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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.
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