EXHIBIT 4.13
First Amendment to Amended and Restated
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of August 5, 2002 (this "Amendment"), is by and between BANK
OF AMERICA, N.A., as successor by merger to Bank of America Illinois (the
"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") (ELXSI, Holdings and
Xxxxxxxx'x being, collectively, the "Borrower").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower is party to that certain Amended and Restated Loan
and Security Agreement, dated as of April 22, 2002 (the "Loan Agreement"); and
WHEREAS, Borrower has requested that the Lender consent to certain
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 hereby
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.
(a) The following is hereby added as the penultimate sentence
in the definition of "Liabilities":
Without limiting the generality of the foregoing,
Liabilities shall include all indebtedness, liabilities
and other obligations of any Borrower to Lender arising
from time to time from the maintenance by Lender of
deposit accounts, lockbox arrangements and other cash
management services.
(b) Section 2.2 (a) of the Loan Agreement is hereby amended to
allow Borrower to increase the amount of Letter of Credit No. 7405732 (as the
same has been extended as provided in Section 2.2(a)(i) of the Loan Agreement)
from $1,050,000 to $2,100,000.
(c) Section 11.7 of the Loan Agreement is hereby amended to
restate the parenthetical in the middle of the final sentence as follows:
(including termination of any and all outstanding
Letters of Credit or, in the alternative, provision of
(x) cash collateral equal to 110% of the aggregate
Letter of Credit Obligations on terms and subject to
documentation in form and substance satisfactory to
Lender; or (y) a "back-up" letter of credit in the
amount of 100% of the aggregate Letter of Credit
Obligations naming Lender as the beneficiary and issued
by a bank or financial institution acceptable to Lender
on terms and subject to documentation in form and
substance satisfactory to Lender).
(d) Pursuant to Section 5.33 of the Loan Agreement, Borrower
has delivered Exhibits A, B and C to the Loan Agreement and such Exhibits are
attached hereto as Exhibits A, B and C and made a part of the Loan Agreement for
all purposes.
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 (x) to the extent specifically made with regard to
a particular date and (y) 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
Amendment, no Unmatured Event of Default or Even of Default will have
occurred and be continuing;
(c) the execution, delivery and performance of this Amendment
has been duly authorized by all necessary action on the part of, and
duly executed and delivered by, the Borrower, and this 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 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 Amendment. This
Amendment shall become effective (the "Effective Date") upon execution and
delivery of this Amendment by Lender, Borrower, and Parent.
SECTION 5. Execution in Counterparts. This 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 6. GOVERNING LAW. THIS 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 7. Effect of Amendment; Reaffirmation of Loan Documents. The
parties hereto agree and acknowledge that (i) nothing contained in this
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 (ii) 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.
SECTION 8. Bond Documents. Borrower has amended the Bond Documents as
required by Section 5.32 of the Loan Agreement. In addition, on the Effective
Date, the Bond Documents (as defined in the Loan Agreement) shall be deemed
waived and amended to the extent necessary and applicable to conform them to the
terms, provisions and conditions of Section 2 hereof.
SECTION 9. Headings. Section headings in this Amendment are included
herein for convenience of any reference only and shall not constitute a part of
this Amendment for any other purposes.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
ELXSI
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxx Xxxxx Xxxxxx
Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 407/849-0625
XXXXXXXX'X HOLDINGS COMPANY, INC.
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
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
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 617/787/1620
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 312/974-2108
CONSENT AND RATIFICATION
Dated as of August 5, 2002
The undersigned hereby acknowledges receipt of a copy of the foregoing
Amendment, consents to all the terms and provisions thereof, and ratifies and
confirms all the terms and provision of each Related Agreement and of each Bond
Document to which it is a party.
ELXSI CORPORATION
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
