EXHIBIT 4.13
WARRANT PURCHASE AND SENIOR
SUBORDINATED NOTE TERMINATION AGREEMENT
This Warrant Purchase and Senior Subordinated Note Termination
Agreement (this "Agreement") is dated as of December 30, 1996 and is made by and
between BankAmerica Capital Corporation, a Delaware corporation and successor to
Continental Illinois Equity Corporation ("BACC"), and ELXSI Corporation, a
Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Stock and Note
Purchase Agreement dated as of August 31, 1989 (the "1989 Stock and Note
Purchase Agreement") by and among The Airlie Group L.P., a Delaware limited
partnership ("Airlie"), Xxxxxx & Company, a Delaware corporation ("Xxxxxx"), and
the Company and pursuant to that certain Stock and Note Purchase Agreement dated
as of January 23, 1990 (the "1990 Stock and Note Purchase Agreement") by and
among BACC, the Company, Airlie and Xxxxxx, the Company has (i) issued to BACC
that certain Series B Warrant No. B-1 to Purchase 604,656 shares of Series A
NonVoting Convertible Preferred Stock of the Company (the "Warrant"), (ii)
issued to BACC that certain Senior Subordinated Note dated September 25, 1989 in
the original principal amount of $401,765 (the "1989 Subordinated Note") and
(iii) issued to BACC that certain Senior Subordinated Note dated June 27, 1991
in the original principal amount of $502,206.25 (the "1991 Subordinated Note"
and, together with the 1989 Subordinated Note, the "Subordinated Notes"); and
WHEREAS, the Company desires to purchase the Warrant from BACC
and BACC desires to sell the Warrant to the Company, and the Company desires to
pay in full all indebtedness and other obligations owing to BACC under the
Subordinated Notes and to terminate the Subordinated Notes, all on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Warrant
or, as applicable, in the Subordinated Notes.
2. Extension of Warrant Expiration Date. The Company and
BACC hereby agree that the definition of "Expiration Date" as set forth in the
Warrant is hereby amended to be "December 31, 1996".
3. Warrant Purchase. The Company agrees to pay to BACC on
the date of this Agreement in immediately available funds by wire transfer to
an account specified in writing by BACC the amount of Four Hundred Seventy-Seven
Thousand Six Hundred Seventy-Eight Dollars and Twenty-Four Cents ($477,678.24)
(the "Warrant Purchase Payment"). BACC agrees
to surrender and deliver for cancellation the Warrant to the Company within 5
Business Days from the date hereof. Upon receipt of the Warrant Purchase
Payment, BACC agrees that BACC shall have no further rights under the Warrant.
4. Prepayment and Termination of Subordinated Notes. The
Company agrees to pay BACC on the date of this Agreement in immediately
available funds by wire transfer to an account specified in writing by BACC the
amount of Seven Hundred Fifty-Seven Thousand One Hundred Ninety Dollars and
Eighty-Three Cents ($757,190.83) (the "Subordinated Notes Payoff Amount"), which
amount includes all principal and accrued and unpaid interest through but not
including the date of this Agreement and which payment shall constitute payment
in full of the Subordinated Notes. BACC agrees to surrender and deliver for
cancellation the Subordinated Notes to the Company within 5 Business Days from
the date hereof. Upon receipt of the Subordinated Notes Payoff Amount, BACC
agrees that the Subordinated Notes will be paid in full and that the
Subordinated Notes shall be terminated. In consideration of the prepayment of
the Subordinated Notes by the Company hereunder, BACC hereby waives the
prepayment charge specified in Section 1.3 of the Subordinated Notes.
5. (a) Representations and Warranties of the Company. As a
material inducement to the execution by BACC of this Agreement, the Company
hereby represents and warrants to BACC as follows:
(i) The Company has all requisite power and authority
(corporate and otherwise) to execute, deliver and perform its
obligations under this Agreement.
(ii) The execution, delivery and performance by the
Company of this Agreement does not and will not (i) violate any
provisions of any law, rule, regulation, order, writ, judgment, decree,
determination or award having applicability to the Company or (ii)
conflict with or result in a breach of or constitute a default under the
articles of incorporation or by-laws of the Company or any indenture,
loan agreement or any other agreement or instrument to which the Company
is a party or by which the Company or any of its properties may be bound
or affected.
(iii) The execution and delivery of this Agreement have
been duly authorized by the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement.
This Agreement constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
(iv) The Company has sufficient knowledge, experience
and sophistication to enable it to properly and fully evaluate and
understand the merits and risks associated with its purchase of the
Warrant. The Company is acquiring the Warrant for investment only and
with no present intention of distributing or reselling such Warrant
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or any part thereof in any transaction that would constitute a
"distribution" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). The Company understands that the Warrant
has not been registered under the Securities Act or any state securities
laws and may not be sold or transferred except in compliance therewith
or pursuant to an exemption thereunder and is being transferred to the
Company, in part, in reliance on the foregoing representations and
warranties.
(b) Representations and Warranties of BACC. As an
inducement to the execution by the Company of the Agreement, BACC
hereby represents and warrants to the Company as follows:
(i) BACC has all requisite power and authority
(corporate and otherwise) to execute, deliver and perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement have
been duly authorized by BACC. This Agreement constitutes the legal,
valid and binding obligation of BACC, enforceable against BACC in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws effecting the
enforcement of creditors' rights generally and to general equitable
principles.
(iii) BACC: (A) has sufficient knowledge, experience
and sophistication to enable it to properly and fully evaluate and
understand the merits and risks associated with its sale of the Warrant
hereunder, (B) is an "accredited investor" (as such term is defined in
Rule 5.01(a) of Regulation D of the Securities Act), and (c) has, prior
to the date hereof, received all information concerning the Company
requested by it, and had the opportunity to ask questions and receive
answers concerning the same.
6. Transfer of Warrant. In consideration of the sale by BACC of
the Warrant to the Company hereunder, the Company hereby waives the requirements
of Sections 3 and 9 of the Warrant, including, without limitation, notice to the
Company of the proposed transfer of the Warrant and the delivery to the Company
by BACC of an opinion of counsel.
7. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement.
8. Notices. All notices and other communications shall be in
writing and shall be delivered by reputable overnight courier or first-class
mail, postage prepaid, to the Company or BACC at the respective addresses set
forth on the signature page hereto or to such other address as one party may
have furnished to the others in writing.
9. Assignment. This Agreement may not be assigned without the
prior written consent of the parties hereto.
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10. Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the laws (excluding choice or
conflicts of laws rules) of the State of Illinois.
11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which taken
together constitute one instrument.
[signature page follows]
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ELXSI CORPORATION
By: ______________________________________
Name:_____________________________________
Title:____________________________________
Address:
0000 Xxxxxxxx Xxxx
Xxxxx X-0
Xxxxxxx, Xxxxxxx 00000
Attention: President
BANKAMERICA CAPITAL CORPORATION
By: ______________________________________
Name:_____________________________________
Title:____________________________________
Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Middle Market I
SIGNATURE PAGE S-1
