THIRD AMENDMENT TO LOAN AGREEMENT
This THIRD AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT"), dated as of
June 19, 1997, is among SONIC CORP., a Delaware corporation (the "BORROWER"),
each of the banks or other lending institutions which is or may from time to
time become a signatory or party to the Agreement (hereinafter defined) or
any successor or permitted assignee thereof (each a "BANK" and collectively,
the "BANKS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("TCB"), as agent for itself and the other Banks and as
issuer of Letters of Credit under the Agreement (in such capacity, together
with its successors in such capacity, the "AGENT").
RECITALS:
A. Borrower, Agent and Banks have entered into that certain Loan
Agreement dated as of July 12, 1995, as amended by that certain First
Amendment to Loan Agreement dated as of August 16, 1996, and as further
amended by that certain Second Amendment to Loan Agreement dated as of
September 27, 1996 (the "AGREEMENT").
B. Pursuant to the Agreement, the undersigned guarantors (each a
"Guarantor" and, collectively, the "GUARANTORS") executed those certain
Guaranty Agreements dated as of July 12, 1995 (each a "GUARANTY" and
collectively, the "GUARANTIES"), which guarantee to Agent the payment and
performance of the Obligations (as defined in the Agreement).
C. Borrower, Agent and Banks now desire to amend the Agreement (i) to
increase the commitments of the Banks to $80,000,000 in the aggregate, (ii)
to extend the Termination Date as specified herein, (iii) to modify certain
covenants, and (iv) as otherwise provided herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section I.1 DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section II.1 AMENDMENT TO COMMITMENTS. Effective as of the date hereof,
the Commitment amounts set forth on the signature pages to the Agreement are
hereby amended to be the amounts set forth below for the respective Banks:
Texas Commerce Bank National Association $21,000,000
Boatmen's National Bank of Oklahoma 19,000,000
UMB Oklahoma Bank 15,000,000
Summit Bank 15,000,000
BancFirst 10,000,000
-----------
TOTAL $80,000,000
-----------
-----------
Section II.2 AMENDMENT TO DEFINITION OF FIXED CHARGE COVERAGE RATIO.
Effective as of May 30, 1997, the definition of "FIXED CHARGE COVERAGE RATIO"
set forth in Section 1.1 of the Agreement is hereby amended to read in its
entirety as follows:
"FIXED CHARGE COVERAGE RATIO" means, at the end of each
fiscal quarter of the Borrower for the most recent four
(4) fiscal quarters then ended, the ratio of (a)
"Consolidated EBITDA minus Income Taxes paid by the
Borrower and the Subsidiaries, TO (b) the sum of the
following for the Borrower and the Subsidiaries on a
consolidated basis: (i) Operating Capital Expenditures,
PLUS (ii) cash interest expense (including the interest
portion of Capital Lease Obligations and Seller
Financing), PLUS (iii) scheduled principal payments of
Consolidated Funded Debt (including, without limitation,
(Capital Lease Obligations and Seller Financing), PLUS
(iv) the aggregate amount of cash dividends paid, plus
(v) the aggregate amount paid for repurchases by the
Borrower or any Subsidiary of stock of such Person
(except the Permitted Stock Repurchases), PLUS (vi) the
amount equal to one-seventh (1/7) of the aggregate amount
of all Advances outstanding hereunder on the last day of
such fiscal quarter.
Section II.3 NEW DEFINITION. Effective as of May 30, 1997, Section 1.1
of the Agreement is hereby amended to add the following definition of
"PERMITTED STOCK REPURCHASES," which definition shall read in its entirety
as follows:
"PERMITTED STOCK REPURCHASES" means the repurchase by the
Borrower of shares of its common capital stock, in an
aggregate amount not to exceed $20,000,000, during the
period from April 14, 1997 to and including December 31,
1997.
Section II.4 AMENDMENT TO TERMINATION DATE. Effective as of the date
hereof, the date "July 12, 1998" appearing in the definition of "Termination
Date" set forth in Section 1.1 of the Agreement is hereby amended to read
"July 12, 2000".
Section II.5 AMENDMENT TO USE OF PROCEEDS. Effective as of May 30,
1997, Section 2.7 of the Agreement is hereby amended to read in its entirety
as follows:
"Section 2.7 USE OF PROCEEDS. The proceeds of Advances
shall be used by the Borrower or any of the Subsidiaries
(subject to the provisions of Sections 9.1 and 9.5) for
working capital in the ordinary course of business, store
development, acquisitions permitted hereunder, Permitted
Stock Repurchases, and general corporate purposes."
Section II.6 AMENDMENT TO USE OF PROCEEDS; MARGIN REQUIREMENTS.
Effective as of May 30, 1997, Section 7.11 of the Agreement is hereby
amended to add the following clause to the end thereof, which clause shall
read as follows:
", except for Permitted Stock Repurchases provided that
no violation of the margin requirements of Regulations G, T,
U and X would result therefrom."
Section II.7 AMENDMENT TO PERMITTED STOCK REPURCHASES. Effective as of
May 30, 1997, Section 9.4 of the Agreement is hereby amended to add the
following clause to the end thereof, which clause shall read as follows:
", and Permitted Stock Repurchases shall be permitted in
addition to the foregoing dollar amount."
Section II.8 AMENDMENT TO MINIMUM CONSOLIDATED NET WORTH. Effective as
of May 30, 1997, Section 10.2 of the Agreement is hereby amended to read in
its entirety as follows:
Section 10.2 MINIMUM CONSOLIDATED NET WORTH. The
Borrower will not permit the Consolidated Net Worth to be less
than the sum of (a) $105,000,000, PLUS (b) for each
fiscal quarter of the Borrower ended through the date of
determination, beginning with the fiscal quarter ending
May 31, 1997, (i) 100% of the positive consolidated net
income of the Borrower and the Subsidiaries for such
quarter, MINUS (ii) all cash dividends declared and paid
by the Borrower for such quarter, and MINUS (iii) the
amount of all stock of the Borrower repurchased by the
Borrower during such quarter, PLUS (c) 100% of the Net
Proceeds received by the Borrower from any issuance, sale
or other disposition of any shares of capital stock or
other equity securities of the Borrower of any class (or
any securities convertible or exchangeable for any such
shares, or any rights, warrants, or options to subscribe
for or purchase any such shares), but in no event shall
the sum of (a), (b) and (c) above be less than
$105,000,000.
Section II.9 AMENDMENTS TO COMPLIANCE CERTIFICATE. Effective as of May
30, 1997, Exhibit "D" to the Agreement is hereby amended to read in its
entirety as set forth on Annex II hereto.
ARTICLE III
CONDITIONS PRECEDENT
Section III.1 CONDITIONS. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) DOCUMENTS. Agent shall have received all of the following,
each dated (unless otherwise indicated) the date of this Amendment, in
form and substance satisfactory to Agent:
(1) RESOLUTIONS. Resolutions of the Board of
Directors of Borrower and each Guarantor (other than the
Partnerships), certified by the Secretary or an Assistant
Secretary of such Person, which authorize the execution,
delivery, and performance by such Person of this
Amendment and the other Loan Documents to which such
Person is or is to be a party hereunder;
(2) INCUMBENCY CERTIFICATE. A certificate of
incumbency certified by the Secretary or an Assistant
Secretary of Borrower and each Guarantor (other than the
Partnerships), respectively, certifying the names of the
officers of such Person authorized to sign this Amendment
and each of the other Loan Documents to which such Person
is or is to be a party hereunder (including the
certificates contemplated herein) together with specimen
signatures of such officers;
(3) CERTIFICATES OF INCORPORATION. The certificates
of incorporation of Borrower and each Guarantor which is
a corporation, certified by the Secretary of State of its
state of incorporation and dated within thirty (30) days
prior to the date hereof;
(4) BYLAWS. The bylaws of Borrower and each
Guarantor which is a corporation, certified by the
Secretary or an Assistant Secretary of such Person;
(5) GOVERNMENTAL CERTIFICATES. (a) Certificates of
the appropriate government officials of the respective
states of incorporation of the Borrower and each
Guarantor (other than the Partnerships) as to the
existence and good standing of such Persons, and (b) with
respect to the Borrower, Sonic Restaurants, Inc., Sonic
Service Corp. and Sonic Industries Inc. only,
certificates of the appropriate governmental officials of
each state where the nature of such Person's business in
such state makes qualification to do business necessary
and where failure to so qualify would have a Material
Adverse Effect, as to the qualification and good standing
of such Person in such state, each dated within thirty
(30) days prior to the date hereof;
(6) BUSINESS TRUST DOCUMENTATION. Appropriate
organizational documents and agreements relating to
America's Drive-In Trust, as the Agent may request, all
certified to the satisfaction of the Agent;
(7) PARTNERSHIP CERTIFICATE. A certificate of an
authorized officer of Sonic Restaurants, Inc., certifying
that (i) each of the Partnerships has been duly formed
and is validly existing, (ii) the Partnerships have the
power and authority to execute, deliver and perform this
Amendment and the other Loan Documents to which they are
a party, and (iii) Sonic Restaurants, Inc. has the power
and authority to execute this Amendment and such Loan
Documents on behalf of the Partnerships, as the managing
general partner of each of the Partnerships, and to
thereby bind the Partnerships;
(8) NOTES. Promissory Notes, each in the form of
Annex III hereto, executed by the Borrower and payable to
the order of the respective Banks, each in
the amount of the respective Bank's Commitment, which
Promissory Notes shall be in renewal and modification of
the Notes executed at the closing of the Agreement;
(9) OPINION OF COUNSEL. A favorable opinion of
Xxxxxxxx XxXxxx XxXxxxxxx XxXxx & Xxxxxx, P.C., legal
counsel to Borrower and the Subsidiaries, as to the
matters set forth in Annex IV hereto, and such other
matters as Agent may reasonably request; and
(10) ADDITIONAL INFORMATION. Such additional
documents, instruments and information as Agent or its
legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., may
request;
(b) INTEREST, FEES AND EXPENSES. The Borrower shall have
paid (i) all accrued interest, fees and other amounts due under
the Agreement, and (ii) all costs and expenses (including
reasonable attorneys' fees) of the Agent incurred in connection
with the preparation, negotiation, execution and closing of this
Amendment;
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in all other Loan Documents, as
amended hereby, shall be true and correct as of the date hereof
as if made on the date hereof;
(d) NO DEFAULT. No Event of Default shall have occurred and
be continuing and no event or condition shall have occurred that
with the giving of notice or lapse of time or both would be an
Event of Default;
(e) ADJUSTMENT OF PRINCIPAL BALANCES. One or more Banks
shall have made offsetting payments to the other Banks as
requested by the Agent in order to cause the outstanding
principal balance of each Bank's Note to correspond to its
Commitment as amended herein; and
(f) CORPORATE MATTERS. All corporate proceedings taken in
connection with the transactions contemplated by this Amendment
and all documents, instruments, and other legal matters incident
thereto shall be satisfactory to Agent and its legal counsel,
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section IV.1 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement are ratified and
confirmed and shall continue in full force and effect. Borrower, Agent and
the Banks agree that the Agreement as amended hereby shall continue to be
legal, valid, binding and enforceable in accordance with its terms.
Section IV.2 RELEASE OF CLAIMS. The Borrower and the Guarantors each
hereby acknowledge and agree that none of them has any and there are no
claims or offsets against or defenses or counterclaims to the terms and
provisions of or the obligations of the Borrower, any Guarantor or any
Subsidiary created or evidenced by the Agreement or any of the other Loan
Documents, and to the extent any such claims, offsets, defenses or
counterclaims exist, the Borrower and the Guarantors each hereby waive, and
hereby release the Agent and each of the Banks from, any and all claims,
offsets, defenses and counterclaims, whether known or unknown, such waiver
and release being with full knowledge and understanding of the circumstances
and effects of such waiver and release and after having consulted legal
counsel with respect thereto.
Section IV.3 REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to Agent and the Banks that (i) the execution,
delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate, partnership and trust action on the
part of Borrower and the Guarantors and will not violate the articles of
incorporation, bylaws, partnership agreement or other organizational
documents of Borrower or the Guarantors, (ii) the representations and
warranties contained in the Agreement, as amended hereby, and any other Loan
Document are true and correct on and as of the date hereof as though made on
and as of the date hereof, (iii) no Event of Default has occurred and is
continuing and no event or condition has occurred that with the giving of
notice or lapse of time or both would be an Event of Default, and (iv)
Borrower is in full compliance with all covenants and agreements contained in
the Agreement as amended hereby.
ARTICLE V
MISCELLANEOUS
Section V.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan
Document including any Loan Document furnished in connection with this
Amendment shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by Agent or any Bank or any
closing shall affect the representations and warranties or the right of Agent
and the Banks to rely upon them.
Section V.2 REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement as amended hereby, are
hereby amended so that any reference in such Loan Documents to the Agreement
shall mean a reference to the Agreement as amended hereby.
Section V.3 EXPENSES OF AGENT. As provided in the Agreement, Borrower
agrees to pay on demand all costs and expenses incurred by Agent in
connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including without
limitation the costs and fees of Agent's legal counsel.
Section V.4 SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of
this Amendment and the effect thereof shall be confined to the provision so
held to be invalid or unenforceable.
Section V.5 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO
BE PERFORMABLE IN DALLAS, DALLAS COUNTY, TEXAS AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section V.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Borrower, Agent and the Banks and their
respective successors and permitted assigns, except Borrower may not assign
or transfer any of its rights or obligations hereunder without the prior
written consent of Agent.
Section V.7 COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
Section V.8 EFFECT OF WAIVER. No consent or waiver, express or
implied, by Agent or any Bank to or for any breach of or deviation from any
covenant, condition or duty by Borrower or any Guarantor shall be deemed a
consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
Section V.9 HEADINGS. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section V.10 NON-APPLICATION OF CHAPTER 15 OF TEXAS CREDIT CODE. The
provisions of Chapter 15 of the Texas Credit Code (Vernon's Annotated Texas
Statutes, Article 5069-15) are specifically declared by the parties not to be
applicable to this Amendment or any of the Loan Documents or the transactions
contemplated hereby.
Section V.11 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO REGARDING THIS AMENDMENT AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
BORROWER:
SONIC CORP.
By:
-----------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
AGENT AND BANKS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent and as a Bank
By:
-----------------------------------
Name:
---------------------------
Title:
---------------------------
BOATMEN'S NATIONAL BANK OF OKLAHOMA
(formerly Bank IV Oklahoma, N.A.)
By:
-----------------------------------
Name:
---------------------------
Title:
---------------------------
UMB OKLAHOMA BANK
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
SUMMIT BANK
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
BANCFIRST
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
Each Guarantor hereby (a) consents and agrees to this Amendment, (b) agrees
that its respective Guaranty shall continue to be the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, and (c) represents and warrants that each of the
representations and warranties set forth in this Amendment with regard to
each such Guarantor are true and correct in all respects.
GUARANTORS:
SONIC RESTAURANTS, INC.
By:
------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
SONIC INDUSTRIES INC.
By:
------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
AMERICA'S DRIVE-IN CORP.
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
AMERICA'S DRIVE-IN TRUST
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
EACH OF THE PARTNERSHIPS SPECIFIED ON
ANNEX I HERETO, each an Oklahoma
general partnership
By: Sonic Restaurants, Inc.,
Managing General Partner of
each of such partnerships
By:
-----------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
INDEX TO ANNEXES
ANNEX I - Partnerships
ANNEX II - Exhibit "D" (Compliance Certificate)
ANNEX III - Form of Note
ANNEX IV - Matters to be Addressed in Opinion of Counsel
ANNEX I
PARTNERSHIPS
Majority Partnership Percentages
CODE PARTNERSHIP NAME TYPE SRI % SII %
----------------------------------------------------------------------------------
A048 Sonic Drive-In of Asheboro, North Carolina Partnership M 99 1
----------------------------------------------------------------------------------
B002 Sonic Drive-In of Blytheville #1 Partnership
(dissolved 5/31/95) M
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx, Xxxxx M 60
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxxx, Xxxxx (College-Major)
Partnership M 80
----------------------------------------------------------------------------------
B072 Sonic Drive-In of Bethany, Oklahoma (39th) M 56
----------------------------------------------------------------------------------
B092 Sonic Drive-In of Bay Springs, Mississippi Partnership M 99 1
----------------------------------------------------------------------------------
B106 Sonic Drive-In of Blytheville #2 Partnership M 80
----------------------------------------------------------------------------------
C048 Sonic Drive-In of Chillicothe, Missouri M 60
----------------------------------------------------------------------------------
C058 Sonic Drive-In of Chandler Oklahoma Partnership M 60
----------------------------------------------------------------------------------
C084 Sonic Drive-In #833, Houston, Channelview C084 M 60
----------------------------------------------------------------------------------
C104 Sonic Drive-In of Cabot Partnership M 60
----------------------------------------------------------------------------------
C134 Sonic Drive-In of Cameron, Missouri M 80
----------------------------------------------------------------------------------
C144 Sonic Drive-In of Callaway, Florida M 75
----------------------------------------------------------------------------------
C156 Sonic Drive-In of Columbia, Mississippi Partnership M 79 1
----------------------------------------------------------------------------------
C173 Sonic Drive-In of Cullman, Alabama Partnership M 80
----------------------------------------------------------------------------------
D038 Sonic Drive-In of Deer Park, Texas Partnership M 80
----------------------------------------------------------------------------------
D041 Sonic Drive-In #000, Xxxxxx, Xxxxx M 60
----------------------------------------------------------------------------------
D047 Sonic Drive-In of Dallas, Texas (Forest Lane &
Greenville Partnership M 51
----------------------------------------------------------------------------------
D052 Sonic Drive-In of Dallas, Texas (Ft. Worth) M 51
----------------------------------------------------------------------------------
D054 Sonic Drive-In of Dallas, Texas (Xxxxxxxxxxxx) M 71
----------------------------------------------------------------------------------
D068 Sonic Drive-In of Dothan, Alabama Partnership M 99 1
----------------------------------------------------------------------------------
D082 SDI of Dothan, Alabama #2 (Xxxx Xxxxx Circle)
Partnership M 80
----------------------------------------------------------------------------------
D083 SDI Danville, Kentucky (Xxxxxxxx) Partnership M 99 1
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxx, Xxxxx (Wheatland Road) Partnership M 51
----------------------------------------------------------------------------------
D085 SDI of Dothan, Alabama #3 Partnership M 80
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxx, Xxxxx (Spring Valley) Partnership M 80
----------------------------------------------------------------------------------
E033 Sonic Drive-In of Ellisville, Mississippi Partnership M 99 1
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxx, Xxxxx Xxxxxxxx Partnership M 99 1
----------------------------------------------------------------------------------
EO61 SDI of Enterprise, Alabama Partnership M 80
----------------------------------------------------------------------------------
F074 Sonic Drive-In of Fairhope, Alabama (Xxxxxx Road)
Partnership M 99 1
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxx, Xxxxx Partnership M 60
----------------------------------------------------------------------------------
G054 Sonic Drive-In of Xxxxxxx Partnership M 80
----------------------------------------------------------------------------------
G060 Sonic Drive-In of Gadsden, Alabama Partnership M 80
----------------------------------------------------------------------------------
G069 SDI of Galax, Virginia Partnership M 99 1
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxxx, Xxxxx Xxxxxxxx Partnership M 99 1
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxxxxx, Xxxxx Xxxxxxxx Partnership M 99 1
----------------------------------------------------------------------------------
G079 Sonic Drive-In of Gadsden, Alabama (Xxxxxxx)
Partnership M 80
----------------------------------------------------------------------------------
G081 SDI of Greensboro, North Carolina (Summit Avenue)
Partnership M 99 1
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx #000, Xxxxxxx, Xxxxxx X000 M 60
----------------------------------------------------------------------------------
H032 Sonic Drive-In of Xxxxx, Louisiana M 60
----------------------------------------------------------------------------------
H033 Sonic Drive-In #744, Houston, Airline H033 M 80
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx #000, Xxxxxxx, Xxxxxx Xxxx H050 M 80
----------------------------------------------------------------------------------
H055 Sonic Drive-In of Houston, Texas (Telephone Road)
Partnership M 65
----------------------------------------------------------------------------------
H061 Sonic Drive-In #000, Xxxxxx, Xxxxx H061 M 80
----------------------------------------------------------------------------------
H071 Sonic Drive-In #000, Xxxxxxx, Xxxxxxx Xx. H071 M 60
----------------------------------------------------------------------------------
H072 Sonic Drive-In #1119, Houston, Dyersdale H072 M 80
----------------------------------------------------------------------------------
H075 Sonic Drive-In of Houston, Texas (Xxxxx Drive) M 80
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx #0000, Xxxxxxxxx, Xxxxx H081 M 80
----------------------------------------------------------------------------------
H082 Sonic Drive-In of Houston, Texas (34th Street)
Partnership M 80
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx, Xxxxx (S. Post Oak)
Partnership M 60
----------------------------------------------------------------------------------
H104 Sonic Drive-In of Huntsville, Alabama (Xxx Xxxxxxx)
Partnership M 70
----------------------------------------------------------------------------------
H106 Sonic Drive-In of Huntsville, Alabama (Memorial
Parkway) Partnership M 80
----------------------------------------------------------------------------------
H113 Sonic Drive-In of Houston, Texas (18th & Magnum)
Partnership M 55
----------------------------------------------------------------------------------
Majority Partnership Percentages
CODE PARTNERSHIP NAME TYPE SRI % SII %
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx, Xxxxx (Xxxxxxxxxxx)
Partnership M 80
----------------------------------------------------------------------------------
H117 Sonic Drive-In of Houston, Texas (Xxxxxxx Road) M 80
----------------------------------------------------------------------------------
H120 Sonic Drive-In of Clear Lake City, Texas Partnership M 60
----------------------------------------------------------------------------------
H121 Sonic Drive-In of Houston, Texas (Scarsdale)
Partnership M 80
----------------------------------------------------------------------------------
H122 Sonic Drive-In of Houston (Xxxxx Road) Texas
Partnership M 80
----------------------------------------------------------------------------------
H125 Sonic Drive-In of Houston, Texas (Veteran's Memorial
Highway) Partnership M 80
----------------------------------------------------------------------------------
H126 Sonic Drive-In of Houston, Texas (Tidwell) Partnership M 60
----------------------------------------------------------------------------------
H127 Sonic Drive-In of Houston, Texas (Xxxxxxx) Partnership M 80
----------------------------------------------------------------------------------
H130 Sonic Drive-In of Houston, Texas (Dairy Ashford)
Partnership M 80
----------------------------------------------------------------------------------
I010 Sonic Drive-In of Independence, Missouri #3 M 51
----------------------------------------------------------------------------------
I012 Sonic Drive-In of Independence, Missouri (23rd &
Westport) M 56
----------------------------------------------------------------------------------
I014 Sonic Drive-In of Independence, Missouri (40 Highway)
Partnership M 80
----------------------------------------------------------------------------------
I015 SDI of Independence, Missouri (Xxxxxx Road), L.C. M 51
----------------------------------------------------------------------------------
J012 Sonic Drive-In of Jonesboro, Louisiana, Partnership M 80
----------------------------------------------------------------------------------
J025 Sonic Drive-In #0000, Xxxxxxx Xxxx, Xxxxx J025 M 60
----------------------------------------------------------------------------------
K020 Sonic Drive-In #0000, Xxxx, Xxxxx K020 M 60
----------------------------------------------------------------------------------
K022 Sonic Drive-In of Kansas City, Kansas (Leavenworth) M 51
----------------------------------------------------------------------------------
K023 Sonic Drive-In of Kansas City, Kansas (Strong) M 51
----------------------------------------------------------------------------------
K035 Sonic Drive-In of Kansas City, Missouri (Independence
Avenue) Partnership M 60
----------------------------------------------------------------------------------
K038 Sonic Drive-In of Kansas City, Kansas (78th Street)
Partnership M 60
----------------------------------------------------------------------------------
L006 Sonic Drive-In of Xxx'x Summit, Missouri General
Partnership M 60
----------------------------------------------------------------------------------
L013 Sonic Drive-In of Leavenworth, Kansas M 75
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxx Xxxx, Xxxxx Partnership M 60
----------------------------------------------------------------------------------
L058 Sonic Drive-In of LaPlace, Louisiana Partnership M 99 1
----------------------------------------------------------------------------------
L075 Sonic Drive-In of Lynn Haven, Florida M 75
----------------------------------------------------------------------------------
L097 Sonic Drive-In of Lonoke Partnership M 60
----------------------------------------------------------------------------------
L100 Sonic Drive-In of Camp Xxxxxxxx Partnership M 60
----------------------------------------------------------------------------------
L105 Sonic Drive-In of Little Rock (Xxxxx) Partnership M 60
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx, Xxxxx Partnership M 56
----------------------------------------------------------------------------------
L121 SDI of Laurens, South Carolina Partnership M 99 1
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxx, Xxxxxxxxxxx Partnership M 99 1
----------------------------------------------------------------------------------
L126 Sonic Drive-In of Little Rock, Arkansas (Westhaven
Drive) Partnership M 51
----------------------------------------------------------------------------------
M019 Sonic Drive-In of Minden, Louisiana M 60
----------------------------------------------------------------------------------
M047 Sonic Drive-In of Monroe, Louisiana (#l)
Partnership M 60
----------------------------------------------------------------------------------
M049 Sonic Drive-In of Maryville, Missouri M 99 1
----------------------------------------------------------------------------------
M053 Sonic Drive-In of Mineola, Texas Partnership M 54
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxx, Xxxxxxxxx (#0) Partnership M 80
----------------------------------------------------------------------------------
M074 Sonic Drive-In of Midwest City, Oklahoma (Xxxxxxx
Blvd) Partnership M 51
----------------------------------------------------------------------------------
M091 Sonic Drive-In of Mansfield, Louisiana Partnership M 65
----------------------------------------------------------------------------------
M093 Sonic Drive-In of Macon, Missouri M 80
----------------------------------------------------------------------------------
M100 Sonic Drive-In of Mountain Grove, Missouri M 51
----------------------------------------------------------------------------------
M117 Sonic Drive-In of Monroe, Louisiana (Winnsboro Road)
Partnership M 80
----------------------------------------------------------------------------------
M135 Sonic Drive-In of Monroe, Louisiana (Sterlington Road)
Partnership M 80
----------------------------------------------------------------------------------
M137 Sonic Drive-In of Maumelle Partnership M 60
----------------------------------------------------------------------------------
M148 SDI of Mt. Airy, North Carolina Partnership M 99 1
----------------------------------------------------------------------------------
M153 Sonic Drive-In of Marianna, Florida Partnership M 99 1
----------------------------------------------------------------------------------
M162 Sonic Drive-In of Missouri City, Texas Partnership M 80
----------------------------------------------------------------------------------
M174 Sonic Drive-In of Montgomery, Alabama (Xxxx and Xxxxxx)
Partnership M 80
----------------------------------------------------------------------------------
M175 SDI of Montgomery, Alabama (XxXxxxx) Partnership M 80
----------------------------------------------------------------------------------
M176 Sonic Drive-In of Montgomery, Alabama (Atlanta
Highway) Partnership M 80
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxx, Xxxxxxx Partnership M 99 1
----------------------------------------------------------------------------------
Ml78 SDI of Mobile, Alabama (Montlimar Drive) Partnership M 99 1
----------------------------------------------------------------------------------
M180 SDI of Mobile, Alabama (Government) Partnership M 99 1
----------------------------------------------------------------------------------
M181 SDI of Mobile, Alabama (Cottage Hill) Partnership M 99 1
----------------------------------------------------------------------------------
M182 SDI of Muscle Shoals, Alabama Partnership M 80
----------------------------------------------------------------------------------
N006 Sonic Drive-In, Northwest M 51
----------------------------------------------------------------------------------
N008 Sonic Drive-In of Neosho, Missouri M 51
----------------------------------------------------------------------------------
Majority Partnership Percentages
CODE PARTNERSHIP NAME TYPE SRI % SII %
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx, Xxxxxxxx Partnership M 70
----------------------------------------------------------------------------------
N028 Sonic Drive-In of Newcastle, Oklahoma Partnership M 80
----------------------------------------------------------------------------------
N042 Sonic Drive-In of Norman, Oklahoma (East Xxxxxxx)
Partnership M 60
----------------------------------------------------------------------------------
N044 Sonic Drive-In of Norman, Oklahoma (24th Avenue)
Partnership M 60
----------------------------------------------------------------------------------
N047 Sonic Drive-In of N. Wilkesboro, North Carolina
Partnership M 99 1
----------------------------------------------------------------------------------
N055 Sonic Drive-In of Norman, Oklahoma (Xxxxxx)
Partnership M 60
----------------------------------------------------------------------------------
N056 Sonic Drive-In of Norman, Oklahoma (Xxxx Xxxxxxx)
Partnership M 80
----------------------------------------------------------------------------------
0016 Sonic Drive-In of Oklahoma City, Oklahoma (19th &
MacArthur) M 51
----------------------------------------------------------------------------------
0018 Sonic Drive-In of Oklahoma City, Oklahoma (50 th &
MacArthur) M 80
----------------------------------------------------------------------------------
0019 Sonic Drive-In of Oklahoma City, Oklahoma (SE 44th) M 51
----------------------------------------------------------------------------------
0027 Sonic Drive-In of Oklahoma City, Oklahoma (Meridian)
Partnership M 60
----------------------------------------------------------------------------------
0029 Sonic Drive-In of Oklahoma City (N.W. 23rd) M 60
----------------------------------------------------------------------------------
0030 Sonic Drive-In of Olathe, Kansas M 80
----------------------------------------------------------------------------------
0035 Sonic Drive-In of Oklahoma City, Oklahoma (SE 29th) M 60
----------------------------------------------------------------------------------
0000 Xxxxx Xxxxx-Xx xx Xxxxx, Xxxxxxxx M 56
----------------------------------------------------------------------------------
0048 Sonic Drive-In Express of Oklahoma City, Oklahoma
(South Western) M 51
----------------------------------------------------------------------------------
0052 Sonic Drive-In of Oak Grove, Missouri General
Partnership M 80
----------------------------------------------------------------------------------
0053 Sonic Drive-In of Xxxxxx, Xxxxxx #0 (Santa Fe) M 60
----------------------------------------------------------------------------------
0055 Sonic Drive-In of Oklahoma City (119th & S. Western) M 60
----------------------------------------------------------------------------------
P017 SDI of Paragould, Arkansas (Kings Hwy.) Partnership M 99 1
----------------------------------------------------------------------------------
P027 Sonic Drive-In of Port Xxxxxx, Texas (Gulfway)
Partnership M 80
----------------------------------------------------------------------------------
P031 Sonic Drive-In of Port Xxxxxx, Texas (Memorial)
Partnership M 60
----------------------------------------------------------------------------------
P054 (Panama City, Florida - file missing) M 75
----------------------------------------------------------------------------------
P111 Sonic Drive-In of Panama City Beach, Florida
(Xxxxxx Drive) Partnership M 75
----------------------------------------------------------------------------------
P112 Sonic Drive-In of Pensacola, Florida (9th Avenue)
Partnership M 99 1
----------------------------------------------------------------------------------
P113 Sonic Drive-In of Pensacola, Florida (Navy Blvd.)
Partnership M 99 1
----------------------------------------------------------------------------------
P115 Sonic Drive-In of Prattville, Alabama (E. Main)
Partnership M 80
----------------------------------------------------------------------------------
R018 Sonic Drive-In of Richmond, Texas Partnership M 70
----------------------------------------------------------------------------------
R021 Sonic Drive-In of XxXxxxxxx, Texas M 61
----------------------------------------------------------------------------------
R041 Sonic Drive-In of Rainbow City, Alabama Partnership M 80
----------------------------------------------------------------------------------
R044 Sonic Drive-In of Raytown, Missouri General Partnership M 80
----------------------------------------------------------------------------------
R049 Sonic Drive-In of Rolla, Missouri M 60
----------------------------------------------------------------------------------
S024 Sonic Drive-In of Oklahoma City, Oklahoma (S.W. 29th)
Partnership M 60
----------------------------------------------------------------------------------
S051 Sonic Drive-In of Xxxxxxxxxxx, Xxxxxxxx #0 Partnership M 80
----------------------------------------------------------------------------------
S060 Sonic Drive-In of Salem, Virginia M 51
----------------------------------------------------------------------------------
S088 Sonic Drive-In of Sugar Creek, Missouri M 56
----------------------------------------------------------------------------------
S092 Sonic Drive-In of St. Xxxxxx, Missouri #1 Partnership M 99 1
----------------------------------------------------------------------------------
S103 Sonic Drive-In of Shreveport, Louisiana (Xxxx Xxxxx) M 60
----------------------------------------------------------------------------------
S115 Sonic Drive-In of Shreveport, Louisiana (West 70th) M 60
----------------------------------------------------------------------------------
S121 Sonic Drive-In of Shreveport (Xxxxxx Drive) M 66.66
----------------------------------------------------------------------------------
S129 Sonic Drive-In of Springfield, Missouri Partnership M 60
----------------------------------------------------------------------------------
S146 Sonic Drive-In of Stanleyville, North Carolina
Partnership M 99 1
----------------------------------------------------------------------------------
S147 Sonic Drive-In of St. Xxxxxx, Missouri #2 Partnership M 99 1
----------------------------------------------------------------------------------
S148 Sonic Drive-In of Scottsboro, Alabama Partnership M 80
----------------------------------------------------------------------------------
S152 Sonic Drive-In of Sherwood, Arkansas Partnership M 60
----------------------------------------------------------------------------------
S154 Sonic Drive-In of Sugar Land, Texas M 80
----------------------------------------------------------------------------------
S160 Sonic Drive-In of Springfield, Missouri (X. Xxxxxxxx)
Partnership M 80
----------------------------------------------------------------------------------
S164 Sonic Drive-In of Xxxxxxxx, Missouri Partnership M 80
----------------------------------------------------------------------------------
S167 Sonic Drive-In of Springfield, Missouri (West Sunshine)
Partnership M 80
----------------------------------------------------------------------------------
S179 SDI of Shalimar, Florida (Elgin Parkway) Partnership M 99 1
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx #000, Xxxxxxx, Xxxxx T038 M 60
----------------------------------------------------------------------------------
T041 Sonic Drive-In of Xxxxxx, 0klahoma M 51
----------------------------------------------------------------------------------
T068 SDI of Tazewell, Virginia Partnership M 99 1
----------------------------------------------------------------------------------
X000 XXX xx Xxxx, Xxxxxxx (231 South) Partnership M 80
----------------------------------------------------------------------------------
X000 XXX xx Xxxxx, Xxxxxxxx Partnership M 80
----------------------------------------------------------------------------------
W001 Sonic Drive-In of Watonga, Oklahoma Partnership M 60
----------------------------------------------------------------------------------
W044 Sonic Drive-In of West Monroe, Louisiana P M 80
----------------------------------------------------------------------------------
Majority Partnership Percentages
CODE PARTNERSHIP NAME TYPE SRI % SII %
----------------------------------------------------------------------------------
X000 Xxxxx Xxxxx-Xx xx Xxxxxxx Xxxxx, Xxxxx Partnership M 55
----------------------------------------------------------------------------------
W053 Sonic Drive-In of Walnut Ridge Partnership M 60
----------------------------------------------------------------------------------
W054 Sonic Drive-In of Winnfield, Louisiana Partnership M 60
----------------------------------------------------------------------------------
X000 XXX xx Xxxxxxxxx, Xxxxx Partnership M 80
----------------------------------------------------------------------------------
W066 Sonic Drive-In of West Monroe, Louisiana (Xxxxxx
Road West) Partnership M 60
----------------------------------------------------------------------------------
W080 Sonic Drive-In of Washington, Missouri General
Partnership M 60
----------------------------------------------------------------------------------
W086 SDI of Winston-Salem, North Carolina (Silas Creek)
Partnership M 99 1
----------------------------------------------------------------------------------
WO88 SDI of Webster, Texas Partnership M 80
----------------------------------------------------------------------------------
W090 SDI of Clemmons, North Carolina Partnership M 99 1
----------------------------------------------------------------------------------
ANNEX II
EXHIBIT "D" (COMPLIANCE CERTIFICATE)
COMPLIANCE CERTIFICATE
TO: Texas Commerce Bank National Association, as Agent
0000 Xxxx Xxxxxx, Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Ladies and Gentlemen:
The undersigned is the chief executive officer, the chief financial
officer, the corporate controller or the treasurer of SONIC CORP., a Delaware
corporation (the "Borrower "), and is authorized to make and deliver this
certificate pursuant to that certain Loan Agreement dated as of July 12,
1995, among the Borrower, each of the banks or other lending institutions
which is or may become a party thereto and the successors and permitted
assigns thereof (the "Banks"), and Texas Commerce Bank National Association,
a national banking association, as agent for itself and each of the other
Banks and as issuer of Letters of Credit thereunder (such Loan Agreement, as
the same has been and may be amended, supplemented or modified from time to
time, being hereinafter referred to as the "Loan Agreement"). All terms
defined in the Loan Agreement shall have the same meaning herein.
In connection with the foregoing and pursuant to the terms and provisions
of the Loan Agreement, the undersigned hereby certifies to the Agent and each
Bank that the following statements are true and correct:
A. REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Article VII of the Loan Agreement and in each of the other Loan
Documents are true and correct on and as of the date hereof with the same
force and effect as if made on and as of such date.
B. FINANCIAL COVENANTS. The information set forth below is true and
correct based upon the financial statements delivered herewith as of the last
day of the fiscal quarter next preceding the date of this certificate:
1. CURRENT RATIO as of ___________, 19___:
(a) Consolidated Current Assets as of such date $
----------
(b) Consolidated Current Liabilities as of such date $
----------
(c) Consolidated Current Ratio (Ratio of Line (a) to Line (b)) to
----- ----
(d) Minimum Consolidated Current Ratio required by Section 10.1
of Loan Agreement 1.00 to 1.00
2. CONSOLIDATED NET WORTH as of , 19 :
----------- --
(a) Stockholders' equity shown on consolidated balance
sheet of the Borrower and the Subsidiaries as of such date $
----------
(b) For each fiscal quarter of Borrower ended through such
date, beginning with the quarter ending May 31, 1997:
(i) the sum of 100% of the positive consolidated net
income of the Borrower and the Subsidiaries for
each such quarter $
----------
(ii) the sum of all cash dividends declared and paid by
the Borrower for each such quarter $
----------
(iii) the amount of all stock of the Borrower repurchased
by the Borrower during each such quarter $
----------
(c) Difference of Line (b)(i), minus Line (b)(ii), and minus
Line (b)(iii) $
----------
(d) With respect to any issuance, sale or other disposition of
any shares of capital stock or other equity securities of
Borrower of any class (or any securities convertible or
exchangeable for any such shares, or any rights, warrants or
options to subscribe for or purchase any such shares), the
aggregate gross proceeds of such issuance, sale or other
disposition, less the following: (i) placement agent fees, (ii)
underwriting discounts and commissions, (iii) bank and other lender
fees, and (iv) legal fees and other expenses payable by the issuer
in connection with such issuance, sale or other disposition, to the
extent such proceeds are received by the Borrower $
----------
(e) Minimum Consolidated Net Worth required by Section 10.2 of
Loan Agreement ($105,000,000 plus Line (c) plus Line (d)) $
----------
3. FIXED CHARGE COVERAGE RATIO as of ___________, 19___ (for the
most recent four (4) fiscal quarters then ended:
(a) Consolidated EBITDA:
(i) net income (positive or negative) $
----------
(ii) to the extent actually deducted in calculating
net income:
(1) interest expense (including the interest portion
of Capital Lease Obligations) $
----------
(2) Income Taxes $
----------
(3) depreciation $
----------
(4) amortization $
----------
(5) other noncash charges $
----------
(6) Total of Lines (a)(ii)(1) through (5) $
----------
(iii) sum of Line (a)(i) plus Line (a)(ii)(6) $
----------
(iv) plus losses (or minus gains) from the sale of
fixed assets not in the ordinary course of
business and other extraordinary or nonrecurring
items $
----------
(v) Sum (or difference) of Line (a)(iii) and Line
(a)(iv) $
----------
(vi) Income Taxes paid $
----------
(vii) Difference of Line (a)(v) minus Line (a)(vi) $
----------
(b) The sum of the following for the Borrower and the Subsidiaries
on a consolidated basis:
(i) Operating Capital Expenditures $
----------
(ii) cash interest expense (including the interest portion
of Capital Lease Obligations and Seller Financing) $
----------
(iii) scheduled principal payments of Consolidated Funded
Debt (including without limitation Capital Lease
Obligations and Seller Financing) $
----------
(iv) aggregate amount of cash dividends paid $
----------
(v) aggregate amount paid for repurchases by the Borrower
or any Subsidiary of stock of such Person (except
Permitted Stock Repurchases) $
----------
(vi) amount equal to 1/7 of the aggregate amount of
all Advances outstanding on the last day of such
fiscal quarter $
----------
(vii) Total of Lines (b)(i) through (vi) $
----------
(c) Ratio of Line (a)(vii) to Line (b)(vii) to
----- ----
(d) Minimum Fixed Charge Coverage Ratio required by
Section 10.3 of Loan Agreement 1.15 to 1.00
4. CONSOLIDATED FUNDED DEBT TO CONSOLIDATED EBITDA as of
________, 19___ (for the most recent four (4) fiscal quarters
then ended):
(a) On a consolidated basis for the Parent and the Subsidiaries
in accordance with GAAP (without duplication),
(i) all obligations for borrowed money (as a direct obligor
on a promissory note, bond, debenture or other similar
instrument)
as of the last day of the fiscal quarter most
recently ended $
----------
(ii) all Capital Lease Obligations as of the last day of
the fiscal quarter most recently ended $
----------
(iii) all obligations for the deferred purchase price
of property $
----------
(iv) all liabilities in connection with letters of credit $
----------
(v) Seller Financing $
----------
(vi) Consolidated Funded Debt (the total of Lines (a)(i)
through (v)) $
----------
(b) Consolidated EBITDA (Line (3)(a)(v) above) $
----------
(c) Ratio of Line (a)(v) to Line (b) to
----------
(d) Maximum Consolidated Funded Debt to Consolidated EBITDA
permitted by Section 10.4 of Loan Agreement 2.00 to 1.00
5. OUTSTANDING GUARANTEES:(1)
(a) Aggregate amount of Guarantees by Borrower or any of the
Subsidiaries of Debt or of other obligations outstanding as
of _______________, 19___: $
----------
(b) Aggregate amount of outstanding Guarantees permitted by
Section 9.1(h) $
----------
The undersigned hereby certifies that (a) the above information and
calculations are true and correct and not misleading as of the date hereof,
(b) Borrower has delivered to the Agent and the Banks all financial
information and reports required by the Loan Agreement by the dates provided
therein, and (c) no Default has occurred and is continuing.
By:
---------------------------------
Name:
---------------------------
Title:
---------------------------
Dated as of:
-----------------
--------------
(1) Item 5 is required to be completed only for the Compliance Certificate
delivered for Borrower's fiscal year-end.
ANNEX III
FORM OF NOTE
PROMISSORY NOTE
$< DOLLAR > Dallas, Texas June 19, 1997
FOR VALUE RECEIVED, the undersigned, SONIC CORP., a Delaware corporation
("Maker"), hereby promises to pay to the order of < BANK > ("Payee"), at the
offices of Texas Commerce Bank National Association, as agent (together with
any successor as provided in the Agreement, hereinbelow defined, the
"Agent"), at 0000 Xxxxxx Xx., 0xx Xxxxx, XX00, Xxxxxxx, Xxxxx 00000, on the
dates hereinafter specified, in lawful money of the United States of America,
the principal sum of < FIGURE > DOLLARS ($< DOLLAR > ), or so much thereof as
may be advanced and outstanding hereunder, together with interest as
hereinafter specified.
This Note is one of the Notes referred to in that certain Loan Agreement
dated as of July 12, 1995, among Maker, Payee, Agent and each of the other
banks or lending institutions which is or may from time to time become a
signatory thereto and any successors or permitted assigns thereof, as amended
by that certain First Amendment to Loan Agreement dated as of August 16,
1996, as further amended by that certain Second Amendment to Loan Agreement
dated as of September 27, 1996, and as further amended by that certain Third
Amendment to Loan Agreement of even date herewith (such Loan Agreement, as
the same has been or may be amended, modified, or supplemented from time to
time, being referred to herein as the "Agreement"). Capitalized terms used
and not otherwise defined in this Note have the respective meanings specified
in the Agreement. This Note is in renewal and modification of that certain
Promissory Note dated August 16, 1996, executed by Maker and payable to the
order of Payee, which Promissory Note was in renewal and modification of that
certain Promissory Note dated July 12, 1995, executed by Maker and payable to
the order of Payee.
The Agreement, among other things, contains provisions for acceleration of
the maturity of this Note upon the happening of certain stated events and
also for prepayments of Advances prior to the maturity of this Note upon the
terms and conditions specified in the Agreement.
This Note evidences Advances made by the Agent and the Banks to Maker
under the Agreement. In addition, as provided in Section 3.4 of the
Agreement, each payment made by Agent pursuant to a drawing under a Letter of
Credit shall constitute and be deemed an Advance by the Banks to Maker,
including an Advance by Payee to Maker under this Note, in accordance with
the terms of the Agreement. Maker may borrow, repay and reborrow hereunder
upon the terms and conditions specified in the Agreement.
The outstanding principal balance hereof shall bear interest at a varying
rate per annum which shall from day to day be equal to the lesser of the
Maximum Rate or the Applicable Rate. If
at any time the Applicable Rate shall exceed the Maximum Rate, thereby
causing the interest rate hereon to be limited to the Maximum Rate, then any
subsequent reduction in the Applicable Rate shall not reduce the rate of
interest hereon below the Maximum Rate until the total amount of interest
accrued hereon equals the amount of interest which would have accrued hereon
if the Applicable Rate had at all times been in effect.
Accrued and unpaid interest on this Note shall be due and payable on the
dates specified in Section 2.4 of the Agreement. All principal of this Note
shall be due and payable on the Termination Date. All past due principal and
interest shall bear interest at the Default Rate. Interest payable at the
Default Rate shall be payable from time to time on demand.
Interest shall be computed on the basis of a year of 360 days and the
actual number of days elapsed (including the first day, but excluding the
last day) unless such calculation would result in a usurious rate, in which
case interest shall be calculated on the basis of 365 or 366 days, as the
case may be.
Notwithstanding anything to the contrary contained herein, no provisions
of this Note shall require the payment or permit the collection of interest
in excess of the Maximum Rate. If any excess of interest in such respect is
herein provided for, or shall be adjudicated to be so provided, in this Note
or otherwise in connection with this loan transaction, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of Maker shall be obligated to pay the
excess amount of such interest, or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the Maximum Rate shall be deemed charged, required or
permitted by any court of competent jurisdiction, any such excess shall be
applied as a payment and reduction of the principal of indebtedness evidenced
by this Note; and, if the principal amount hereof has been paid in full, any
remaining excess shall forthwith be paid to Maker. In determining whether or
not the interest paid or payable exceeds the Maximum Rate, Maker and Payee
shall, to the extent permitted by applicable law, (i) characterize any
non-principal payment as an expense, fee, or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the entire contemplated term of the
indebtedness evidenced by this Note so that the interest for the entire term
does not exceed the Maximum Rate.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. THIS NOTE IS PERFORMABLE IN DALLAS COUNTY, TEXAS.
Maker and each surety, guarantor, endorser, and other party ever liable
for payment of any sums of money payable on this Note jointly and severally
waive notice, presentment, demand for payment, protest, notice of protest and
non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace, and
all other
formalities of any kind, except any notice and grace periods provided in the
Loan Agreement, and consent to all extensions without notice for any period
or periods of time and partial payments, before or after maturity, all
without prejudice to the holder. The holder shall similarly have the right
to deal in any way, at any time, with one or more of the foregoing parties
without notice to any other party, and to grant any such party any extensions
of time for payment of any of said indebtedness, or to grant any other
indulgences or forbearances whatsoever, without notice to any other party and
without in any way affecting the personal liability of any party hereunder.
Maker hereby authorizes the holder hereof to endorse on the Schedule
attached to this Note or any continuation thereof or to record in its
internal records all advances made to Maker hereunder and all payments made
on account of the principal thereof, which endorsements shall be prima facie
evidence as to the outstanding principal amount of this Note; provided,
however, any failure by the holder hereof to make any endorsement shall not
limit or otherwise affect the obligations of Maker under the Agreement or
this Note.
SONIC CORP.
By:
---------------------------------
W. Xxxxx XxXxxx
Treasurer
ANNEX IV
MATTERS TO BE ADDRESSED IN OPINION OF COUNSEL
All capitalized terms used and not otherwise defined herein shall have
their respective meanings as set forth in the Agreement (as defined in the
Third Amendment to Loan Agreement [the "Amendment"] to which this is an
Exhibit), except that, as used in this Annex IV only, the terms "Guarantor"
and "Guarantors" shall not include the Partnerships.
1. The Borrower is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware. The Borrower is
qualified to do business in and is in good standing under the laws of the
State of Oklahoma.
2. Each Guarantor (except Drive-In Trust) is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation.
3. Drive-In Trust is a business trust duly organized, validly existing,
and in good standing under the laws of the State of Pennsylvania.
4. The Borrower has the corporate power and authority to execute, deliver,
and perform the Amendment, the Notes, and the other Loan Documents to which
the Borrower is a party. The execution, delivery, and performance by the
Borrower of the Amendment, the Notes, and the other Loan Documents to which
the Borrower is a party and compliance with the terms and provisions thereof
have been duly authorized by all requisite corporate action on the part of
the Borrower and do not and will not (a) violate or conflict with, or result
in a breach of, or require any consent under (i) the certificate of
incorporation or bylaws of the Borrower, (ii) any applicable law, rule, or
regulation or any order, writ, injunction, or decree of any Governmental
Authority or arbitrator, or (iii) any agreement or instrument to which the
Borrower is a party or by which Borrower or any of its property is bound or
subject, or (b) constitute a default under any such agreement or instrument,
or result in the creation or imposition of any Lien upon any of the revenues
or assets of the Borrower.
5. Each Guarantor has the power and authority to execute, deliver, and
perform the Amendment and the other Loan Documents to which such Guarantor is
a party. The execution, delivery, and performance by each Guarantor of the
Amendment and the other Loan Documents to which such Guarantor is a party and
compliance with the terms and provisions thereof have been duly authorized by
all requisite action on the part of such Guarantor and do not and will not
(a) violate or conflict with, or result in a breach of, or require any
consent under (i) the articles or certificate of incorporation, declaration
of trust, bylaws or other organizational documents of such Guarantor, (ii)
any applicable law, rule, or regulation or any order, writ, injunction, or
decree of any Governmental Authority or arbitrator, or (iii) any agreement or
instrument to which such Guarantor is a party or by which it or any of its
property is bound or subject, or (b) constitute a default under any such
agreement or instrument, or result in the creation or imposition of any Lien
upon any of the revenues or assets of such Guarantor.
6. The Amendment, the Notes, and the other Loan Documents to which
Borrower is a party have been duly executed and delivered by Borrower. The
Amendment, the Agreement as amended by the Amendment, and the other Loan
Documents to which Borrower is a party constitute the legal, valid, and
binding obligations of Borrower enforceable against Borrower in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws relating to the enforcement of creditors' rights generally.
7. The Amendment and the other Loan Documents to which each Guarantor is a
party have been duly executed and delivered by such Guarantor and constitute
the legal, valid, and binding obligations of such Guarantor enforceable
against such Guarantor in accordance with their respective terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to the enforcement
of creditors' rights generally.
8. There are no legal or arbitral proceedings, and no proceedings by or
before any governmental or regulatory authority or agency, pending or, to our
knowledge, threatened against or affecting Borrower or any Subsidiary or any
properties or rights of any such Person, which if adversely determined, would
have a Material Adverse Effect.
9. No authorization, consent, or approval of, or filing or registration
with, any Governmental Authority is required in connection with the
execution, delivery, or performance by Borrower of the Amendment, the Notes,
and the other Loan Documents to which Borrower is a party, or the execution,
delivery, and performance by any Guarantor of the Amendment and the other
Loan Documents in which such Guarantor is a party.
10. Neither the Borrower nor any Subsidiary is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
