EXHIBIT 4.14
SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT is dated as of December 30, 2002 (this "Second Amendment") by and
among BANK OF AMERICA, N.A., as successor by merger to Bank of America Illinois
("Lender"), ELXSI, a California corporation ("ELXSI"), BICKFORD'S HOLDINGS
COMPANY, INC., a Delaware corporation ("Holdings"), and XXXXXXXX'X FAMILY
RESTAURANTS, INC., a Delaware corporation ("Bickford's" 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 (as amended, restated, supplemented or otherwise
modified through the date hereof, the "Loan Agreement");
WHEREAS, in order to provide funds necessary to enable Borrower to
payoff the Bonds (as defined in the Loan Agreement), Borrowers have requested
that additional funds in the amount necessary to repay the Bonds be advanced on
the Loan Agreement under an additional Term Loan; 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 Second Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as follows:
a. Section 1.1 of the Loan Agreement is amended by adding the
following definitions for "Loan Document", "Second Amendment" and
"Second Amendment Effective Date" in proper alphabetical order:
"Loan Document" means any Related Agreement.
"Second Amendment" shall mean that certain Second
Amendment to the Amended and Restated Loan Agreement dated
as of December 31, 2002.
"Second Amendment Effective Date" is as defined in the
Second Amendment.
b. The definition for Mortgage in Section 1.1 is amended by
substituting the terms "Original Loan Agreement, Existing Loan Agreement or the
Second Amendment" for the terms "Original Loan Agreement or the Existing Loan
Agreement".
c. The last sentence of the definition for Note in Section 1.1
shall be deleted in its entirety and replaced with the following:
"Notwithstanding the terms and provisions of the Notes executed prior to the
Second Amendment Effective Date, on the Second Amendment Effective Date, each of
the Notes shall be deemed amended hereby to provide for a maturity date of
January 31, 2003."
d. The definition for Term Loan Amount in Section 1.1 shall be
deleted in its entirety and replaced with, ""Term Loan Amount" means the Current
Term Loan Amount plus the Additional Term Loan Amount (as defined in Section
2.1.1)."
e. The definition for "Termination Date" in Section 1.1 shall be
deleted in its entirety and replaced with the following: ""Termination Date"
means January 31, 2003 or such later date as may be fixed pursuant to Section
11.7.".
f. Section 2.1.1 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
2.1.1 Term Loan. On the date hereof, the unpaid principal
balance of the Term Loan ("Term Loan") is $1,737,500.00
("Current Term Loan Amount"), after giving effect to
payments made or to be made up to and including the Second
Amendment Effective Date. The Borrower shall make
quarterly principal payments on the Term Loan in the
amount of $250,000 each on the last day of each March,
June, September and December hereafter, with a single
final payment of the outstanding balance of principal and
interest due on the Termination Date. On the Second
Amendment Effective Date, Lender agrees, on the terms and
conditions hereinafter set forth, to make to Borrowers an
additional Term Loan ("Additional Term Loan") in the
amount of $1,638,489.17 ("Additional Term Loan Amount"),
the proceeds of which will be used to repay the Bonds. The
Borrowers shall make monthly principal payments on the
Additional Term Loan in the amount of $13,888.69 on the
last day of each month hereafter, with a single final
payment of the outstanding balance of principal and
interest due on the Termination Date. Reference herein to
the "Term Loan" or "Term Loans" shall be deemed to include
the Additional Term Loan. Amounts borrowed as a Term Loan
which are repaid or prepaid by Borrowers may not be
reborrowed.
g. Section 2.4.1(b) of the Loan Agreement is amended by
substituting the terms "three and one-half percent (3.50%)" for the terms "two
percent (2%)".
h. Section 2.7 of the Loan Agreement is amended by substituting
the first sentence thereof with the following: "The Term Loan, Additional Term
Loan, Revolving Loans and all other Loans under this Agreement shall constitute
one Loan, and all Indebtedness and other Liabilities of Borrower to Lender under
this Agreement and any of the Related Agreements shall constitute one general
obligation secured by Lender's Lien on all of the Collateral and Third Party
Collateral and by all other Liens heretofore, now, or at any time hereafter
granted by Borrower or any other Obligor to Lender.".
i. Section 5.13 of the Loan Agreement shall be amended by adding
in the first line after the term "Not" the following: "make any payments or
compensation under that certain ELXSI 1991 Phantom Stock Plan from any of the
following sources: (1) the proceeds of any Loan; (2) other indebtedness of any
kind (whether or not such indebtedness is subordinate to the Loans); (3)
distributions of unencumbered assets owned by the Borrower; (4) dividends or (5)
preferred stock, nor shall the Borrower".
j. Section 5.32 of the Loan Agreement shall be deleted in its
entirety and replaced with "Intentionally Deleted".
k. Section 5.36 shall be added to the Loan Agreement that states
as follows: "Ensure that the proceeds from the Additional Term Loan be used only
for the payment of principal and unpaid interest of the Bonds".
SECTION 3. Post-Closing Matters.
a. Borrowers hereby covenant and agree to ensure that the Florida
Mortgage is recorded with the Orange County Recorder's Office within one (1)
business day of the execution hereof.
b. Borrowers hereby covenant and agree to deliver to Lender prior
to January 15, 2003 in form and substance acceptable to Lender, the following:
(a) a date down to the existing Title Insurance Policy No. MP-2055081, insuring
the Amended and Restated Mortgage and Security Agreement ("Florida Mortgage") on
the property commonly known as 0000 Xxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx ("Florida
Property"); (b) a legal opinion from Xxxxx Xxxxxxx Berlack Israels LLP, special
counsel to Borrower and Parent; and (c) a legal opinion from Xxxxxxx Xxxxxx,
P.A. with respect to the Florida Mortgage.
c. Borrowers further covenant and agree to deliver to Lender
prior to February 1, 2003 in form and substance acceptable to Lender, an
as-built ALTA Survey of the Florida Property that meets the 1999 ALTA survey
requirements, contains Table A Options 1, 2, 3, 4, 6, 7(a), 7(b), 7(c), 8, 9,
10, 11, 14, 15 and 16, contains a flood certification, is certified to Lender,
its successors and/or assigns, and otherwise is in form and substance acceptable
to Lender.
SECTION 4. 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 that certain Writ of Attachment dated December 3, 2002 ("Shine Writ of
Attachment") issued in the Commonwealth of Massachusetts in the amount of
$580,000 on properties owned by Borrower and located at 0000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx and 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx and with respect to the lawsuit captioned Xxxxx
X. Xxxxx x. Xxxxxxxx'x Family Restaurants, Inc. and ELXSI, MICV2002-04975
("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 Second Amendment Effective Date, after giving effect to
this Second Amendment, no Unmatured Event of Default or Event of Default will
have occurred and be continuing, except that Lender acknowledges the existence
the Shine Writ of Attachment and Shine Lawsuit;
c. the execution, delivery and performance of this Second
Amendment has been duly authorized by all necessary action on the part of, and
duly executed and delivered by, the Borrower, and this Second 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 Second
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 5. Conditions Precedent to Effectiveness of Second Amendment.
This Second Amendment shall become effective (the "Second Amendment Effective
Date") upon completion of each of the following in form and substance
satisfactory to Lender: (a) execution and delivery of this Second Amendment by
Lender, Borrowers and Parent; (b) execution and delivery by Borrower of the
Florida Mortgage Additional Term Note, Allonge to Term Note and Allonge to
Revolving Note; (c) the delivery by Borrower of copies of the resolutions of the
board of directors of each Borrower authorizing the transactions contemplated
hereby, certified as of the date hereof by the Secretary or an Assistant
Secretary thereof; and (d) delivery by Borrower of such other documents as the
Lender may reasonably request.
SECTION 6. Breach of this Second 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.
SECTION 7. Execution in Counterparts. This Second 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 8. 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 Second Amendment, including but not limited to the attorneys'
fees, title insurance fees, local counsel fees and time charges of attorneys for
Lender with respect thereto.
SECTION 9. GOVERNING LAW. THIS SECOND 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 10. Effect of Amendment; Reaffirmation of Loan Documents. The
parties hereto agree and acknowledge that (a) nothing contained in this Second
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 Second 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 11. Headings. Section headings in this Second Amendment are
included herein for convenience of any reference only and shall not constitute a
part of this Second Amendment for any other purposes.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first written above.
ELXSI
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
BICKFORD'S HOLDINGS COMPANY, INC.
By:/s/ XXXXX XXXXXXXXX
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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
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 000-000-0000
BANK OF AMERICA, N.A.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 000-000-0000
CONSENT AND RATIFICATION
Dated as of December 30, 2002
The undersigned hereby acknowledges receipt of a copy of the foregoing Second
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 XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
