FIFTH AMENDMENT
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of July 3, 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 "Credit Reduction Amount" in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its entirety as
follows:
"Credit Reduction Amount" means, (i) for each Credit Reduction Date
during 1995, an amount equal to $280,000 and (ii) for each Credit
Reduction Date thereafter, an amount equal to $370,000, in each case
subject to adjustment as provided in Section 2.1.
2.2. 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 July 3, 1995,
$15,840,000, as adjusted after such date pursuant to this Agreement,
including pursuant to Sections 2.1.3 and 2.1.4.
SECTION 3. CONDITIONS PRECEDENT.
The amendments 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) Real Property. With respect to each parcel of Real Property
owned or leased by Borrower not previously mortgaged to Lender
pursuant to the Loan Agreement, other than those parcels listed on
Schedule I hereto:
(i) A Mortgage duly executed by Borrower;
(ii) Copies of all documents of record
concerning such parcel as shown on the commitment
for the ALTA Loan Title Insurance Policy;
(iii) Except with respect to leased Real
Property in shopping centers, a survey acceptable
to Lender in Lender's reasonable exercise of
judgment; and
(iv) Original or certified copies of insurance
policies (or certificates therefor) issued to Borrower for
"all risk" property, casualty and public liability insurance
for such parcel and, if such parcel is in a flood hazard area,
flood insurance, with standard noncontributory mortgagee
clauses or endorsement in favor of Lender (it being understood
that the amount, terms of coverage and insurer shall be
reasonably acceptable to Lender).
(e) 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
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on and as of such date).
3.3. Restructuring Fee. Lender shall have received from
Borrower a non-refundable restructuring fee of $75,000.
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) 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 and
allocated costs of staff 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
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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.
4.7. Title Insurance Policies. Within 45 days after the Effective Date,
Borrower shall deliver to Lender, with respect to each parcel of Real Property
owned or leased by Borrower not previously mortgaged to Lender pursuant to the
Loan Agreement, other than those parcels listed on Schedule I hereto, an ALTA
Loan Title Insurance Policy issued by an insurer acceptable to Lender and
insuring Lender's Lien on such parcel (or Borrower's leasehold interest therein)
in an amount and with a title insurance company acceptable to Lender and
containing such endorsements as Lender may reasonably require (it being
understood that the amount of coverage, exceptions to coverage and status of
title set forth in the policy shall be reasonably acceptable to Lender). Failure
to comply with this Section 4.7 shall constitute an Event of Default under the
Loan Agreement.
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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