Exhibit 4.1
FIRST AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT is dated as of April 21, 2004 (this "Amendment"), 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 ("Bickford's LLC"),
BICKFORD'S HOLDINGS COMPANY, INC., a Delaware corporation ("Holdings"), and
XXXXXXXX'X FAMILY RESTAURANTS, INC., a Delaware corporation ("Bickford's";
Parent, ELXSI NH, Bickford's LLC, Holdings and Bickford's 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,
restated, supplemented or otherwise modified through the date hereof, the "Loan
Agreement");
WHEREAS, Borrowers have requested that the Lender consent to certain
transactions 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 Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as follows:
(a) A new paragraph (d) shall be added to Section 2.2 of the
Loan Agreement to read in its entirety as follows:
"(d) Notwithstanding anything to the contrary contained in
Section 2.4(b)(v) (which Section 2.4(b)(v) shall not be
applicable to the sale of the Seekonk Property and the
Burlington Property (as such terms are defined below)), in
addition to the principal payments required to be made on Term
Loan A and Term Loan B in Sections 2.2(a) and 2.2(b), Borrowers
promise to pay to the order of Lender the following additional
principal payments from the proceeds of sale of the real
property located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxxxxxxxx (the "Seekonk Property") and 0 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx,
0
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the "Burlington Property"): (i)
from the proceeds of sale of the Seekonk Property, Borrowers
promise to pay to the order of Lender an additional principal
payment of Term Loan B in the amount of $800,000, (ii) from the
proceeds of sale of the Burlington Property, Borrowers promise
to pay to the order of Lender an additional principal payment of
Term Loan B in an amount equal to the lesser of $800,000 or the
unpaid principal balance of Term Loan B, and Borrowers promise
to pay to the order of Lender an additional principal payment of
Term Loan A in an amount equal to the amount by which the net
sale proceeds from the sale of the Burlington Property exceeds
the amount applied to Term Loan B, (iii) if the closing of the
sale of the Burlington Property is not consummated on or before
April 30, 2004, then on April 30, 2004, Borrowers promise to pay
to the order of Lender the amount by which the net sale proceeds
from the sale of the Seekonk Property exceeds $800,000 (the
"Excess Seekonk Proceeds") for application to the unpaid
principal of Term Loan B, until paid in full, and thereafter to
the unpaid principal of Term Loan A, (iv) if the closing of the
sale of the Burlington Property is consummated on or before
April 30, 2004, and Term Loan B is paid in full on or before
April 30, 2004, then Borrowers promise to pay to the order of
Lender on or before July 22, 2004, an amount equal to the Excess
Seekonk Proceeds for application to the unpaid principal of Term
Loan A. No payments made in accordance with this paragraph shall
reduce any scheduled principal payments on the Term Loans due
under Sections 2.2(a) or 2.2(b)."
(b) Section 2.11(e)(ii) of the Loan Agreement is amended by
replacing "March 31, 2004," with "April 30, 2004."
(c) 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. Waivers and Consents. On the Amendment Effective Date, and
in accordance with Section 15.1 of the Loan Agreement, Lender consents to the
following transactions and waives the Borrowers' noncompliance with the Sections
of the Loan Agreement described below:
(a) Lender consents to the sale of the real property located
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the "Seekonk
Property") by Bickford's to The SBL Company LLC and the lease by The SBL Company
LLC of the Seekonk Property to Bickford's, subject to the terms and conditions
of a written consent to such transaction from Lender to Borrowers dated on or
before the date hereof.
(b) Lender consents to the sale of the real property located
at 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the
"Burlington Property"), by Bickford's to Xxxxxxxxx Xxxxxx or an entity
controlled by him and the lease by such purchaser to Bickford's of the
Burlington Property, subject to the terms and conditions of a written consent to
such transaction from Lender to Borrowers dated on or before the date hereof.
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(c) Lender consents to the acquisition by ELXSI on March 11,
2004, of certain assets used in the commercial manufacturing division of
Contempo Design, Inc., from Fleet Capital Corporation, its creditor, to be used
in the business of design, production and distribution of cabinetry and kiosks
and related products for retailers, to be operated as a division of ELXSI to be
known as "Custom Commercial Environments" ("CCE Division") to be located in
Lincolnshire, Illinois. In connection with such acquisition and operations,
Lender hereby waives compliance with the following sections of the Loan
Agreement and any Events of Default relating thereto: (i) Section 6.8, to the
extent that Borrowers failed to send prior written notice of the location of
Inventory and Equipment acquired by ELXSI for the CCE Division, (ii) Section
7.6, to the extent that the CCE Division operations would be considered a change
in the principal nature of the business of ELXSI, (iii) Section 7.13, to the
extent it would prohibit the acquisition by ELXSI of assets owned by Contempo
Design, and (iv) Section 7.19, to the extent it would prohibit ELXSI's entering
into a lease of the premises in Lincolnshire, Illinois (the "Lincolnshire
Lease"), for the CCE Division's operations, so long as base rentals for such
premises shall not exceed $500,000 annually.
SECTION 4. 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 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.
(e) Within forty-five (45) days after the date hereof, ELXSI
shall deliver to Lender (i) a certified copy of the Lincolnshire Lease,
(ii) a landlord's waiver and consent from the landlord of the
Lincolnshire Lease acknowledging the security interest granted to
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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, (iii) a certified copy of a recorded Memorandum of Lease
evidencing the Lincolnshire Lease, (iv) a leasehold mortgage in favor
of Lender covering ELXSI's rights as tenant under the Lincolnshire
Lease, and (v) evidence of the authority of ELXSI to transact business
in Illinois as a foreign corporation and the good standing of ELXSI in
Illinois.
SECTION 5. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective (the "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 a fee in the aggregate
amount of $100,000, which fee shall be earned by Lender upon the
execution by Lender of a counterpart of this Amendment and shall be due
and payable as follows: (i) $34,000 on the date of execution by Lender
of a counterpart of this Amendment, $33,000 on or before May 3, 2004,
and $33,000 on or before June 1, 2004.
SECTION 6. 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 7. 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 8. 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 9. 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.
SECTION 10. 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
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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 11. 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 12. 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
CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM
THE LIABILITIES, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN
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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]
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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,
a California corporation
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
ELXSI (NEW HAMPSHIRE), INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXXXXX'X RESTAURANTS, LLC,
a Delaware limited liability company
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BICKFORD'S HOLDINGS COMPANY, INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXXXXX'X FAMILY RESTAURANTS, INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
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XXXXX FARGO FOOTHILL, INC.,
a California corporation
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
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ACKNOWLEDGMENT AND RATIFICATION
The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing First 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 Bickford's EBITDA. Bickford's 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] greater than or
equal to the amount set forth in Section 7.18(a)(iii) of the Loan Agreement for
the corresponding period.
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] less than or
equal to the amount set forth in Section 7.18(b)(i) of the Loan Agreement for
the corresponding period.
E-1
