EXHIBIT 4.15
THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT is dated as of January 31, 2003 (this "Third Amendment") by and among
BANK OF AMERICA, N.A., as successor by merger to Bank of America Illinois
("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" and collectively with
ELXSI and Holdings, "Borrower").
WITNESSETH:
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WHEREAS, Borrower and Lender entered into that certain Amended and
Restated Loan and Security Agreement dated as of April 22, 2002, as amended by
that certain First Amendment to Amended and Restated Loan and Security Agreement
dated as of August 5, 2002, and that certain Second Amendment to Amended and
Restated Loan and Security Agreement dated as of December 30, 2002 (as amended,
restated, supplemented or otherwise modified through the date hereof, the "Loan
Agreement"); and
WHEREAS, Borrower has requested that the Lender consent to certain
other 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.
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a. The last sentence of the definition of "Note" in Section
1.1 shall be deleted in its entirety and replaced with the following:
"Notwithstanding the terms and provisions of the Notes, each of the Notes shall
be deemed amended hereby to provide for a maturity date of June 30, 2003.
Provided that (i) no Event of Default has occurred or is continuing under the
Loan Agreement and (ii) the Borrower has paid to Lender a $50,000 loan extension
fee, Borrower shall have the right to extend the maturity date of the Notes to
January 31, 2004, upon written notice delivered to Lender no earlier than June
1, 2003 and no later than June 27, 2003. If the maturity date is so extended,
then as of July 1, 2003, Section 2.4.1(b) of the Loan Agreement shall
automatically be deemed amended, without further notice, to substitute the terms
"five percent (5%)" for the terms "three and one-half percent (3.50%)"".
b. The definition of "Net Worth" in Section 1.1 shall be
deleted in its entirety and replaced with the definition of Net Worth set forth
on Supplement A attached hereto.
c. The definition of "Termination Date" in Section 1.1 shall
be deleted in its entirety and replaced with the following: "Termination Date"
means June 30, 2003 or such later date as may be fixed pursuant to Section 1.1
of the Loan Agreement".
d. The following shall be added as Section 5.37 to the Loan
Agreement:
"Disposition of Xxxxxxxx'x Business and/or Cues Business/Re-finance of
the Loan. On or prior to April 30, 2003, Borrower shall (i) engage the
services of an investment banking firm (the "Investment Banker") for
the purpose of selling either the Xxxxxxxx'x Business or the Cues
Business, or both, or (ii) deliver a re-financing letter (the
"Re-financing Letter") from a lending institution proposing to
re-finance the Loan and pay off all of the Liabilities in full on or
before June 30, 2003. The Investment Banker (and the scope of its
engagement) and the Re-financing Letter, shall each be acceptable to
Lender, in Lender's sole reasonable discretion. If Borrower fails to
comply with the foregoing provisions on or prior to April 30, 2003,
Borrower shall, as Lender's sole and exclusive remedy, pay to Lender in
immediately available funds on April 30, 2003 a non-refundable,
non-compliance fee of $250,000 and Section 2.4.1(b) of the Loan
Agreement shall automatically be deemed amended, without further
action, to substitute the terms "five percent (5%)" for the terms
"three and one-half percent (3.50%)" as of May 1, 2003. If, however,
Borrower complies with the foregoing requirements, but (i) the sale of
either the Xxxxxxxx'x Business or the Cues Business or (ii) the
re-finance of the Loan is not completed on or before June 30, 2003,
then Borrower, as Lender's sole and exclusive remedy, shall pay to
Lender in immediately available funds on June 30, 2003 a
non-refundable, non-compliance fee of $250,000. If Borrower elects to
sell the Xxxxxxxx'x Business or the Cues Business, all proceeds of such
sale up to the amounts due under the Loan Agreement and the Notes shall
be paid directly to Lender and, notwithstanding Section 2.1.4 of the
Loan Agreement, the proceeds shall initially be applied to the payments
due under the Term Loan in inverse order of maturity and shall not
reduce any quarterly principal payments on the Term Loan due under the
Loan Agreement and then as provided in Section 2.1.4 of the Loan
Agreement. Notwithstanding anything to the contrary contained herein,
the consent of Lender shall be required for the sale of the Xxxxxxxx'x
Business or the Cues Business, which consent may be withheld in
Lender's sole discretion. Failure to pay the non-compliance fee when
due shall constitute an immediate Event of Default without notice to
Borrower ."
e. Section 2.11 of the Loan Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
"Reaffirmation. Each request for a Loan by Borrower pursuant to this
Agreement shall constitute an automatic certification by Borrower to
Lender that (i) all of the representations and warranties of Borrower
and each other Obligor in this Agreement and each of the Related
Agreements are true and correct on the date of such request to the same
extent as if made on such date, except (x) to the extent any such
representation or warranty relates solely to an earlier date (including
the date hereof) and was true and correct on such earlier date, (y) for
such changes as are the result of any act or omission specifically
permitted hereunder (or under such Related Agreement) or otherwise
expressly agreed to by Lender and (z) for those representations and
warranties contained in the Loan Agreement which are affected by that
certain Writ of Attachment dated December 3, 2002 (the "Shine Writ of
Attachment") issued in the Commonwealth of Massachusetts in the amount
of $580,000 on properties owned by Borrower and located in the
Commonwealth of Massachusetts and/or the lawsuit captioned Xxxxx X.
Xxxxx x. Xxxxxxxx'x Family Restaurants, Inc. and ELXSI, MICV2002-04975
("Shine Lawsuit") and (ii) immediately before and after making the
requested Loan or issuing the requested Letter of Credit no Event of
Default, or Unmatured Event of Default, then exists or would result
therefrom."
f. Supplement A to the Loan Agreement (the "Old Supplement
A") is hereby amended by deleting it in its entirety and replacing it with the
Supplement A attached to this Third Amendment.
SECTION 3. Waivers. On the Effective Date, the Lender hereby waives:
(a) any breach of Sections 2.1, 2.2 and 2.3 of the Old Supplement A to the Loan
Agreement for fiscal year 2002 and any Events of Default relating thereto; and
(b) any breaches or Events of Default under the Loan Agreement occurring prior
to the date hereof relating to the Shine Writ of Attachment or the Shine
Lawsuit, provided however, that Lender does not waive any breach or Events of
Default under the Loan Agreement which may occur after the date hereof as a
result of (i) the attachment of any portion of the Cues Business or any portion
of the Xxxxxxxx'x Business located outside of the State of Massachusetts; or
(ii) a order or judgment being issued by a court of competent jurisdiction in
the Shine Lawsuit.
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 (i) to the extent specifically made with regard to
a particular date and (ii) with respect to the Shine Writ of Attachment
and the Shine Lawsuit; and (iii) 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
the Lender;
b. on the Effective Date, after giving effect to this Third
Amendment, no Unmatured Event of Default or Event of Default will have
occurred and be continuing;
c. the execution, delivery and performance of this Third
Amendment has been duly authorized by all necessary action on the part
of, and duly executed and delivered by, the Borrower, and this Third
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 Third
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 Third Amendment.
This Third Amendment shall become effective (the "Effective Date") upon
completion of each of the following in form and substance satisfactory to
Lender: (a) execution and delivery of this Third Amendment by Lender, Borrowers
and Parent; (b) execution and delivery of the Allonge to Term Note, the Allonge
to Additional Term Note and Allonge to Revolving Note; (c) the delivery by
Borrower of copies of the resolutions of the board of directors of each Borrower
authorizing the transactions contemplated hereby, certified as of the date
hereof by the Secretary or an Assistant Secretary thereof; (d) payment of a
$50,000 loan extension fee; (e) legal opinion from counsel to Borrower in form
and substance acceptable to Lender; and (f) delivery by Borrower of such other
documents as the Lender may reasonably request.
SECTION 6. Breach of this Third 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 Third 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 Section 11.3 of 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 Third Amendment, including but not limited to the attorneys'
fees and time charges of attorneys for Lender with respect thereto.
SECTION 9. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUCTED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 10. Effect of Amendment; Reaffirmation of Loan Documents. The
parties hereto agree and acknowledge that (a) nothing contained in this Third
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 (b) 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. Upon the effectiveness of this Third 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.
SECTION 11. Headings. Section headings in this Third Amendment are
included herein for convenience of any reference only and shall not constitute a
part of this Third Amendment for any other purposes.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be executed by their respective officers thereunto duly authorized as of the
date first written above.
ELXSI
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
XXXXXXXX'X HOLDINGS COMPANY, INC.
By:/s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 000-000-0000
XXXXXXXX'X FAMILY RESTAURANTS, INC.
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 000-000-0000
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 000-000-0000
CONSENT AND RATIFICATION
Dated as of January 31, 2003
The undersigned hereby acknowledges receipt of a copy of the foregoing Third
Amendment, consents to all the terms and provisions thereof, and ratifies and
confirms all the terms and provision of each Related Agreement to which it is a
party.
ELXSI CORPORATION
By: /s/ XXXXX XXXXXXXXX
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Name:Xxxxx Xxxxxxxxx
Title:Vice President
SUPPLEMENT A
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of April 22, 2002, 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 April 22, 2002, as amended by that certain First
Amendment to Amended and Restated Loan and Security Agreement dated as of August
5, 2002, that certain Second Amendment to Amended and Restated Loan and Security
Agreement dated as of December 30, 2002 and that certain Third Amendment to
Amended and Restated Loan and Security Agreement dated as of January 31, 2003,
between Borrower and Lender (the "Third Amendment") (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. As used in this Supplement A,
"EBITDA" means, as of the last day of any specified calendar month,
Borrower's consolidated net earnings before interest expense,
depreciation, amortization and provision for Taxes of the Borrower for
the period from January 1, 2003 to and including the last day of such
calendar month taking such period as one (1) accounting period. For
purposes of this definition, (i) net earnings shall not include (x) any
gains on the sale or other disposition of Investments (other than cash
equivalents) or fixed assets and any extraordinary or nonrecurring
items of income for the period to the extent that the aggregate of all
such gains and extraordinary or nonrecurring items of income exceeds
the aggregate of losses on such sales or other dispositions and
extraordinary or nonrecurring charges during such period and (y) the
aggregate amount of interest income earned after December 31, 2002 and
included as income during such period, (ii) net earnings will be
calculated without the effect of a reduction for fees paid by the
Borrower to Lender as required under this Third Amendment, and (iii)
interest expense shall include, without limitation, implicit interest
expense on Capitalized Leases. Notwithstanding the foregoing, EBITDA
shall be determined without giving effect to any reserve established,
or increase or decrease thereof, for Fiscal Year 2002, or for any
period thereafter.
"Net Worth" means on the last day of any specified fiscal quarter, the
consolidated net equity of the Borrower calculated in accordance with
GAAP.
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. EBITDA. Maintain EBITDA as of the end of each calendar
month in an amount not less than the amount set forth below for the applicable
calendar month:
Calendar Month Ending EBITDA
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January 31, 2003 $ 361,000
February 28, 2003 $ 834,000
March 31, 2003 $1,428,000
April 30, 2003 $1,947,000
May 31, 2003 $2,568,000
June 30, 2003 $3,264,000
July 31, 2003 $3,829,000
August 31, 2003 $4,319,000
September 30, 2003 $4,935,000
October 31, 2003 $5,502,000
November 30, 2003 $5,976,000
December 31, 2003 $6,494,000
January 31, 2004 $6,494,000
SECTION 2.2. Net Worth. Maintain a Net Worth as of the end of each
fiscal quarter of Borrower not less than the amount set forth for the applicable
quarter:
Fiscal Quarter Ending Net Worth
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March 31, 2003 $53,850,000
June 30, 2003 $54,000,000
September 30, 2003 $54,225,000
December 31, 2003 $54,350,000
The Net Worth covenants provided above are calculated using a deferred tax asset
as of December 31, 2002 of $24,078,000. If the amount of the tax deferred asset
as of December 31, 2002 is revised as a result of the ongoing audit, then the
Net Worth covenants shall be revised to increase (in the event the tax deferred
asset increases) or decrease (in the event the tax deferred asset decreases) in
accordance with the tax deferred asset revision.
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),
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) would exceed $4,000,000 for Fiscal Year
2003 or for any Fiscal Year thereafter, on a non-cumulative basis.
