Exhibit 4.21
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NINTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT is dated as of January 15, 2004 (this "Ninth Amendment"), by and among
XXXXX FARGO FOOTHILL, INC. ("Lender"), assignee of Bank of America, N.A., 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" and collectively with ELXSI and Holdings, the
"Borrowers").
WITNESSETH:
WHEREAS, Borrowers and Lender (or Lender's predecessor in interest)
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,
that certain Second Amendment to Amended and Restated Loan and Security
Agreement dated as of December 30, 2002, that certain Third Amendment to Amended
and Restated Loan and Security Agreement dated as of January 31, 2003, that
certain Fourth Amendment to Amended and Restated Loan and Security Agreement
dated as of March 31, 2003, that certain Fifth Amendment to Amended and Restated
Loan and Security Agreement dated as of June 30, 2003 (the "Fifth Amendment"),
that certain Sixth Amendment to Amended and Restated Loan and Security Agreement
dated as of August 29, 2003, that certain Amended and Restated Seventh Amendment
to Amended and Restated Loan and Security Agreement dated as of September 30,
2003, and that certain Eighth Amendment to Amended and Restated Loan and
Security Agreement dated as of December 1, 2003 (as amended, restated,
supplemented or otherwise modified through the date hereof, the "Loan
Agreement");
WHEREAS, on June 18, 0000, Xxxx xx Xxxxxxx, X.X., assigned all of its
right, title and interest in and to the Loan Agreement and Related Agreements
(as defined in the Loan Agreement) and Supplemental Documentation (as defined in
the Loan Agreement) to Lender; and
WHEREAS, Borrowers have 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 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.
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SECTION 2. Amendments. Upon the Ninth Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as follows:
(a) The last sentence of the definition of "Note" in Section 1.1
shall be deleted in its entirety and replaced with the following:
"Notwithstanding the terms and provisions of the Notes, each of the
Notes shall be deemed amended hereby to provide for a maturity date of
February 2, 2004."
(b) The definition of "Termination Date" in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced with the
following:
"'Termination Date' means February 2, 2004."
SECTION 3. Waivers. On the Ninth Amendment Effective Date, Lender
waives the Borrowers' noncompliance with Section 2.1 of Supplement A to the
Existing Loan Agreement for the periods ending October 31, 2003, November 30,
2003, and December 31, 2003, and any Events of Default relating thereto.
SECTION 4. Representations, Warranties and Covenants of the Borrowers.
Each of the Borrowers represents and warrants to the Lender, and agrees that:
(a) the representations and warranties contained in the Loan
Agreement (as amended hereby) and the other outstanding 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, (ii) with respect to the Shine Writs of
Attachment (as defined in the Fifth Amendment) and the Shine Lawsuit
(as defined in the Fifth Amendment) 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 Ninth Amendment Effective Date, after giving effect to
this Ninth Amendment, no Unmatured Event of Default or Event of Default
will have occurred and be continuing;
(c) the execution, delivery and performance of this Ninth
Amendment has been duly authorized by all necessary action on the part
of, and duly executed and delivered by the Borrowers, and this Ninth
Amendment is a legal, valid and binding obligation of the Borrowers
enforceable against each 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 Ninth
Amendment does not conflict with or result in a breach by any Borrower
of any term of any material contract, loan agreement, indenture or
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other agreement or instrument to which such Borrower is a party or is
subject.
SECTION 5. Conditions Precedent to Effectiveness of Ninth Amendment.
This Ninth Amendment shall become effective (the "Ninth Amendment Effective
Date") upon completion of each of the following in form and substance
satisfactory to Lender: (a) execution and delivery of this Ninth Amendment by
Lender, Borrowers and Parent; (b) the delivery to Lender of an Allonge to each
outstanding Note, executed by each of the Borrowers, and (c) delivery by
Borrowers of such other documents as the Lender may reasonably request.
SECTION 6. Breach of this Ninth 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 Ninth 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 Ninth Amendment, including but not limited to the attorneys'
fees and time charges of attorneys for Lender with respect thereto.
SECTION 9. GOVERNING LAW. THIS NINTH 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 Ninth
Amendment in any manner or respect limits or terminates any of the provisions of
the Loan Agreement or the other outstanding 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 outstanding 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 Ninth 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 Ninth Amendment are
included herein for convenience of any reference only and shall not constitute a
part of this Ninth Amendment for any other purposes.
SECTION 12. Release. EACH BORROWER HEREBY ACKNOWLEDGES THAT AS OF THE
DATE HEREOF IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
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ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE LIABILITIES OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER OR ITS
AFFILIATES, PARTICIPANTS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES OR ATTORNEYS. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES
AND FOREVER DISCHARGES LENDER, AND ITS AFFILIATES AND PARTICIPANTS, AND ITS
PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
NINTH AMENDMENT IS EXECUTED, WHICH ANY BORROWER MAY NOW OR HEREAFTER HAVE
AGAINST LENDER, ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND
ARISING FROM THE LIABILITIES, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
LOAN AGREEMENT OR RELATED AGREEMENTS, SUPPLEMENTAL DOCUMENTATION OR OTHER LOAN
DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS NINTH AMENDMENT. EACH
BORROWER HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT
LAW OR IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE INSTITUTION
OR PROSECUTION OF ANY CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO RECOVER DEBTS
OR DEMANDS OF ANY NATURE AGAINST LENDER, ITS AFFILIATES, AND PARTICIPANTS, AND
THEIR RESPECTIVE SUCCESSORS, AGENTS, ATTORNEYS, OFFICERS, DIRECTORS, EMPLOYEES,
AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR BEFORE THE DATE HEREOF OUT
OF OR RELATED TO LENDERS' ACTIONS, OMISSIONS, STATEMENTS, REQUESTS OR DEMANDS IN
ADMINISTERING, ENFORCING, MONITORING, COLLECTION OR ATTEMPTING TO COLLECT THE
INDEBTEDNESS OF BORROWER TO LENDER, WHICH INDEBTEDNESS WAS EVIDENCED BY THE LOAN
AGREEMENT, RELATED AGREEMENTS, SUPPLEMENTAL DOCUMENTATION AND OTHER LOAN
DOCUMENTS.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth 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
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Title: Vice President
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Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
XXXXXXXX'X HOLDINGS COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
XXXXXXXX'X FAMILY RESTAURANTS, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
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XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Vice President
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Address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Group Credit Manager--Specialty Finance
Facsimile number: 000-000-0000
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ACKNOWLEDGMENT AND RATIFICATION
The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Ninth Amendment to Amended and Restated Loan and Security Agreement,
(ii) consents to all of the terms and provisions thereof, (iii) ratifies and
confirms all of the terms and provisions of the outstanding Related Agreements
to which it is a party; and (iv) acknowledges and agrees that all references in
the outstanding Related Agreements to any loan or credit agreement executed by
and between any of the Borrowers and Lender shall refer without further
amendment to the Loan Agreement as amended by the foregoing Ninth Amendment.
ELXSI CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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Address: 0000 Xxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile number: 000-000-0000
