First Amendment to Amended and Restated Loan and Security Agreement among Bank of America, ELXSI, Bickford's Holdings Company, and Bickford's Family Restaurants

Summary

This amendment updates the existing loan and security agreement between Bank of America and the borrowers ELXSI, Bickford's Holdings Company, and Bickford's Family Restaurants. The changes include expanding the definition of liabilities, increasing the amount of a specific letter of credit, and updating collateral requirements. The amendment confirms that all other terms of the original agreement remain in effect. The parties reaffirm their obligations, and the amendment becomes effective upon signing by all parties.

EX-4.13 6 ex4_13.txt EXHIBIT 4.13 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"), BICKFORD'S HOLDINGS COMPANY, INC., a Delaware corporation ("Holdings"), and BICKFORD'S FAMILY RESTAURANTS, INC., a Delaware corporation ("Bickford's") (ELXSI, Holdings and Bickford's 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/ DAVID DOOLITTLE ------------------------------------- Name: David Doolittle Title: Vice President Address: 3600 Rio Vista Avenue Suite A Orlando, Florida 32805 Attention: President Facsimile number: 407 ###-###-#### BICKFORD'S HOLDINGS COMPANY, INC. By: /s/ DAVID DOOLITTLE ------------------------------------- Name: David Doolittle Title: Vice President Address: 1330 Soldier's Field Road Boston, MA 02135 Attention: Kevin P. Lynch Facsimile number: 617 ###-###-#### BICKFORD'S FAMILY RESTAURANTS, INC. By: /s/ DAVID DOOLITTLE ------------------------------------- Name: David Doolittle Title: Vice President Address: 1330 Soldier's Field Road Boston, MA 02135 Attention: Kevin P. Lynch Facsimile number: 617/787/1620 BANK OF AMERICA, N.A. By: /s/ MICHAEL HAMMOND ------------------------------------- Name: Michael Hammond Title: Senior Vice President Address: 231 South LaSalle Street Chicago, Illinois 60697 Attention: Chicago Growth Group Facsimile number: 312 ###-###-#### 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/ DAVID DOOLITTLE ------------------------------------- Name: David Doolittle Title: Vice President