Exhibit 4.14
EIGHTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of November 14, 2001 (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:
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WHEREAS, Borrower is party to that certain Amended and Restated Loan
and Security Agreement, dated as of December 30, 1996 (the "Loan Agreement"), as
the same has been amended through the Seventh Amendment, dated as of August 23,
2001; and
WHEREAS, Borrower has requested that the Lender consent to certain
amendments and waivers 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 and Consents. On the Effective Date,
(a) Lender hereby consents to extend the time to deliver the mortgages,
landlord's waivers, ALTA title insurance policy and certificate of the chief
financial officer under Sections 13 (a), (b), (c) and (e), respectively, of the
Fifth Amendment, dated as of December 29, 2000 (the "Fifth Amendment"), until
December 31, 2001.
(b) Effective December 1, 2001, and until the Liabilities are
indefeasibly paid in full, and notwithstanding any term or provision of the Loan
Agreement to the contrary, the Eurodollar Rate Margin for Revolving Loans shall
be 2.50% and for Terms Loans shall be 2.75%.
SECTION 3. Waivers. On the Effective Date, the Lender hereby (A)
waives any breach of Sections 2.1 and 2.2 of Supplement A to the Loan Agreement
for the third fiscal quarter of Borrower's Fiscal Year - 2001, provided the
Borrower shall be required to be in compliance with such sections for accounting
periods of the Borrower ending after such fiscal quarter as if such waiver had
not been given for such fiscal quarter, and (B) waives any failure of the
Borrower to comply with Sections 13(a), (b), (c) and (e) of the Fifth Amendment
prior to the Effective Date, provided the Borrower shall use due diligence to
satisfy such requirements prior to December 31, 2001, and in any event failure
to comply with Sections 13(a), (b), (c) and (e) of the Fifth Amendment by
December 31, 2001 shall constitute an Event of Default under the Loan Agreement.
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 (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
Lender;
(b) on the Effective Date, after giving effect to this Amendment,
no Unmatured Event of Default or Event 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 5. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective (the "Effective Date") upon satisfaction of the
following:
(a) the Lender, Borrower and Parent shall have executed and
delivered this Amendment; and
(b) the fees and expenses of Lender's counsel invoiced through the
date hereof shall have been paid in full in immediately
available funds.
SECTION 6. 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.
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SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 8. 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 9. Bond Documents. On the Effective Date, the Bond Documents
(as defined in the Fifth Amendment) shall be deemed waived and amended to the
extent necessary and applicable to conform them to the terms, provisions and
conditions of Sections 2 and 3 hereof.
SECTION 10. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
[signature pages follow]
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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:________________________________
Name:______________________________
Title:_____________________________
Address: 0000 Xxx Xxxxx Xxxxxx
Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 407/849-0625
XXXXXXXX'X HOLDINGS COMPANY, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 617/787-1620
XXXXXXXX'X FAMILY RESTAURANTS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Address: 0000 Xxxxxxx'x Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile number: 617/787-1620
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BANK OF AMERICA, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chicago Growth Group
Facsimile number: 312/974-2108
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CONSENT AND RATIFICATION
Dated as of November 16, 2001
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 provisions of each Related Agreement and of each Bond
Document to which it is a party.
ELXSI CORPORATION
By:________________________
Its:_______________________
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