Exhibit 4.1
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FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT is dated as of March 31, 2003 (this "Fourth 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, 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 (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. Upon the Fourth Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as follows:
a. Supplement A to the Loan Agreement is hereby amended
by deleting it in its entirety and replacing it with the
Supplement A attached to this Fourth Amendment.
b. Section 5.13 of the Loan Agreement shall be amended
by adding after the term "(5) preferred stock", the following,
", except after the later of: (A) February 1, 2004 or (B) the
date on which the Term Loan, Additional Term Loan and
Revolving Loans are indefeasibly paid in full in cash and all
commitments under the Loan Documents terminated,".
SECTION 3. 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 Fourth Amendment Effective Date (as
hereinafter defined), after giving effect to this Fourth
Amendment and that certain correspondence dated March 20, 2003
from Lender to Borrowers with respect to a Waiver under Loan
and Security Agreement, no Unmatured Event of Default or Event
of Default will have occurred and be continuing;
c. the execution, delivery and performance of this
Fourth Amendment has been duly authorized by all necessary
action on the part of, and duly executed and delivered by the
Borrower, and this Fourth 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
Fourth 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 4. Conditions Precedent to Effectiveness of Fourth Amendment.
This Fourth Amendment shall become effective (the "Fourth Amendment Effective
Date") upon completion of each of the following in form and substance
satisfactory to Lender: (a) execution and delivery of this Fourth Amendment by
Lender, Borrowers and Parent; and (b) delivery by Borrower of such other
documents as the Lender may reasonably request.
SECTION 5. Breach of this Fourth 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.
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SECTION 6. Execution in Counterparts. This Fourth 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. 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 Fourth Amendment, including but not limited to the attorneys'
fees and time charges of attorneys for Lender with respect thereto.
SECTION 8. GOVERNING LAW. THIS FOURTH 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 9. Effect of Amendment; Reaffirmation of Loan Documents. The
parties hereto agree and acknowledge that (a) nothing contained in this Fourth
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 Fourth 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 10. Headings. Section headings in this Fourth Amendment are
included herein for convenience of any reference only and shall not constitute a
part of this Fourth Amendment for any other purposes.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first written above.
ELXSI
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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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 X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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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 X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 000-000-0000
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BANK OF AMERICA, N.A.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
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Title: Senior Vice President
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Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 000-000-0000
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CONSENT AND RATIFICATION
Dated as of March 31, 2003
The undersigned hereby acknowledges receipt of a copy of the foregoing Fourth
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 X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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SUPPLEMENT A
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of March 31, 2003, 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, that certain Third Amendment to Amended
and Restated Loan and Security Agreement dated as of January 31, 2003, and that
certain Fourth Amendment to Amended and Restated Loan and Security Agreement
dated as of March 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 any amendment to the Loan
Agreement, 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.
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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 year-to-date 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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March 31, 2003 $ 178,000
April 30, 2003 $ 696,000
May 31, 2003 $1,318,000
June 30, 2003 $2,014,000
July 31, 2003 $2,579,000
August 31, 2003 $3,069,000
September 30, 2003 $3,685,000
October 31, 2003 $4,252,000
November 30, 2003 $4,725,000
December 31, 2003 $5,244,000
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 Month Ending Net Worth
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March 31, 2003 $50,569,000
June 30, 2003 $50,819,000
September 30, 2003 $50,980,000
December 31, 2003 $51,081,000
The Net Worth covenants provided above are calculated using a
deferred tax asset as of December 31, 2002 of $22,997,000. If
the amount of the tax deferred asset during 2003 is revised,
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.
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