Amended and Restated Promissory Note between ELX Limited Partnership and ELXSI Corporation dated December 31, 2001

Summary

ELX Limited Partnership has issued an amended and restated promissory note to ELXSI Corporation for $1,606,278, replacing a previous note. The note sets out the terms for repayment of the principal and interest, with a maturity date of April 1, 2005. Interest is calculated based on the lender’s cost of funds plus 0.5%. The note is secured by pledge and security agreements and allows for various forms of repayment. It also details events of default and the consequences if the borrower fails to meet its obligations.

EX-10.26 6 ex10_26.txt EXHIBIT 10.26 Exhibit 10.26 THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED PURSUANT TO SUCH ACT OR UNLESS IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AN EXEMPTION FROM REGISTRATION IS AVAILABLE. ELX LIMITED PARTNERSHIP AMENDED AND RESTATED PROMISSORY NOTE --------------- $1,606,278 As of December 31, 2001 FOR VALUE RECEIVED, the undersigned, ELX Limited Partnership, a Delaware limited partnership ("Payor"), hereby unconditionally promises to pay to ELXSI Corporation, a Delaware corporation ("Payee"), the principal sum of ONE MILLION SIX HUNDRED SIX THOUSAND TWO HUNDRED SEVENTY-EIGHT AND 00/100 DOLLARS ($1,606,278) on April 1, 2005 (the "Maturity Date"), or such earlier date as may otherwise be provided for herein, plus interest at the rate and on the date provided for herein. This Note amends and restates, and has been issued in exchange for, that certain Promissory Note dated December 8, 1994, as amended, made by Payor in favor of Payee in the original principal amount of $1,155,625. Such note evidenced a loan in such amount made by the Payee to the Payor on such date (the "Loan"). As of the date hereof, the outstanding principal balance of such note was $1,472,074 (due to previous capitalization(s) of interest) and the accrued and unpaid interest thereunder was $134,204. This Note evidences the capitalization of such interest and evidences and sets forth the amended terms of the Loan and the interest thereon previously and herein capitalized. At the date hereof the obligations of the Payor under this Note are secured under three Pledge and Security Agreements (the "Pledge Agreements"), each of even date herewith, executed and delivered by (in the case of one such Agreement) the Payor, (in the case of another such Agreement) Cadmus Corporation ("Cadmus"), and (in the case of the third such Agreement), Alexander M. Milley and Winchester National, Inc. Such Pledge and Security Agreements also secure the obligations of the Payor to the Payee under another promissory note made by the Payor, and of Cadmus to ELXSI, a California corporation and subsidiary of Payee, under two other promissory notes made by Cadmus. Section 1. Interest, Payments and Prepayments. 1.1 The unpaid principal balance of this Note shall bear interest at a rate per annum equal to (i) the rate of interest per annum charged on the funds borrowed by the Payee (or its subsidiary) in order to make or maintain the Loan (including any refinancing, refunding or renewal of such borrowing) (the "Cost of Funds") plus (ii) one half percent (0.5%). The interest rate payable hereunder shall change automatically on the effective date of any change in the Cost of Funds. 2 1.2 All interest hereunder shall be due payable on the Maturity Date (or such earlier date as may otherwise be provided for herein). 1.3 Payments and prepayments of principal and interest on this Note shall be made, at the option of Payor: (a) in lawful money of the United States of America by wire or bank transfer, or as otherwise designated by Payee, in immediately available funds to an account designated in writing by Payee; (b) by surrender of indebtedness of the Payee or any subsidiary thereof with a value equal to the amount of the payment or prepayment then due; (c) by surrender of equity securities of the Payee with a value equal to the amount of the payment or prepayment then due; (d) by any combination of the foregoing. 1.4 In the event that a payment or prepayment under this Note is made, in whole or in part, by the surrender of indebtedness or equity securities as permitted under Section 1.3 (b), (c) or (d) above, the value of the applicable indebtedness or equity securities shall be the fair value thereof determined in good faith by the Board of Directors of Payee. 1.5 If the date on which any payment is required to be made pursuant to the provisions of this Note occurs on a Saturday, Sunday or legal holiday observed in the State of New York, such payment shall be due and payable on the immediately succeeding date which is not a Saturday, Sunday or legal holiday so observed. 1.6 The principal and interest on this Note may be voluntarily prepaid, in whole or in part, at any time and from time to time, provided that any principal amount so prepaid shall be accompanied by payment of the accrued but unpaid interest thereon. Prepayments shall be applied first to interest and then to principal. 1.7 Nothing contained in this Note shall be deemed to establish or require the payment of a rate of interest in excess of the maximum rate legally enforceable. If the rate of interest called for under this Note at any time exceeds the maximum rate legally enforceable, or if any charges payable pursuant hereto are, according to applicable laws, construed to be interest which has the effect of causing the interest hereunder to exceed the maximum rate legally enforceable, the rate of interest and/or charges required to be paid hereunder shall be automatically reduced so that the interest hereunder does not exceed the maximum rate legally enforceable. If such interest rate and/or charges are so reduced and thereafter the maximum rate legally enforceable is increased, the rate of interest and/or fees required to be paid hereunder shall be automatically increased to the maximum rate legally enforceable, which in no event shall exceed the rate otherwise provided for in this Note. 3 Section 2. Events of Default. In the event that: 2.1 Payor defaults in making any payment required to be made under this Note; or 2.2 Payor fails to pay any principal of or interest on any indebtedness for borrowed money, or any guarantee thereof, beyond the period of grace, if any, provided with respect thereto, or Payor defaults in the observance or performance of any other term, covenant, agreement, condition, undertaking or provision contained in any agreement or instrument evidencing or securing or related to any such indebtedness for borrowed money or guarantee, if the effect thereof is to cause, or permit the holder or holders thereof (or a trustee or trustees on behalf of such holder or holders) to cause, and such holder or holders have caused, such indebtedness for money borrowed or guarantee to become due prior to its stated maturity; provided that the aggregate amount of all indebtedness affected as aforesaid shall equal or exceed $100,000.00; or 2.3 Any pledgor defaults under any applicable Pledge Agreement and such default shall not have been cured or waived after thirty (30) days written notice of such default shall have been given by Payee; or 2.4 (i) Payor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or shall make a formal or informal general assignment for the benefit of its creditors; or (ii) there shall be commenced against Payor any case, proceeding, or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 90 days; or (iii) Payor takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i) or (ii) above; or (iv) Payor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; then, upon the occurrence and during the continuance of any such event (an "Event of Default"), Payee (unless there shall have occurred an Event of Default under Section 2.4, in which case the unpaid balance of this Note shall automatically become due and payable) may, by written notice to Payor, declare this Note due and payable, whereupon the same shall become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived. 4 Section 3. Miscellaneous. 3.1 All notices, requests, demands or other communications to or upon Payor or Payee shall be deemed to have been given or made when deposited in the mails, postage prepaid, addressed to Payor at 3600 Rio Vista Avenue, Orlando, Florida 32805, and to Payee at the same address. No other method of giving notice is hereby precluded. 3.2 No failure or delay on the part of the Payee in exercising any right, power or privilege hereunder, and no course of dealing between Payor and Payee shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege hereunder preclude the simultaneous or later exercise of any other right, power or privilege. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which the Payee would otherwise have. No notice to or demand on Payor in any case shall entitle the Payee to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Payee to take any other or further action in any circumstances without notice or demand. 3.3 The Payor agrees to pay and save the Payee harmless against liability for the payment of all out-of-pocket expenses arising in connection with the enforcement of this Note, including without limitation the reasonable fees and expenses of counsel selected by the Payee. 3.4 Upon receipt of evidence reasonably satisfactory to Payor of the loss, theft, destruction or mutilation of this Note and of a letter of indemnity reasonably satisfactory to Payor from the Payee, and upon reimbursement to Payor of all reasonable expenses incident thereto, and upon surrender or cancellation of this Note, if mutilated, Payor will make and deliver a new Note of like tenor in lieu of such lost, stolen, destroyed or mutilated Note. 3.5 This Note shall be binding upon Payor and Payee and their respective successors and permitted assigns. This Note, and the rights and obligations hereunder, may not be assigned or delegated by Payee without the prior written consent of Payor or by Payor without the prior written consent of Payee. 3.6 This Note shall be interpreted, construed and enforced in accordance with the laws of the State of New York. ELX LIMITED PARTNERSHIP By: /s/ ALEXANDER M. MILLEY ---------------------------- Alexander M. Milley Sole General Partner