NINTH AMENDED AND RESTATED REVOLVING CREDIT NOTE
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$6,000,000.00 DALLAS, TEXAS TO BE EFFECTIVE AS OF JUNE 26, 2005
FOR VALUE RECEIVED, the undersigned, PIZZA INN, INC., a Missouri
corporation (the "BORROWER"), hereby promises to pay to the order of XXXXX FARGO
BANK, NATIONAL ASSOCIATION (successor to Xxxxx Fargo Bank (Texas), National
Association, herein "BANK"), at its office located at 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxxx, Xxxxx 00000 , on or before October 1, 2007, in lawful money of
the United States of America and in immediately available funds, the principal
sum of Six Million and No/100 Dollars ($6,000,000.00) or such lesser amount as
shall equal the aggregate unpaid principal amount of the Revolving Credit Loans
and any additional Advances made by the Bank to the Borrower under Article II of
the Loan Agreement referred to below, and to pay interest on the amount of each
such Advance, at such office, in like money and funds, for the period commencing
on the date of such Advance until such Advance shall be paid in full, at the
rates per annum and on the dates provided in the Loan Agreement (as hereinafter
defined).
The Borrower hereby authorizes the Bank to record in Bank's internal
records the amount and Type of Advances made to the Borrower by the Bank and all
Continuations, Conversions, and payments of principal in respect of such
Advances, which records shall, in the absence of manifest error, be conclusive
as to the outstanding principal amount of all such Advances; provided, however,
that the failure to make such notation with respect to any such Advance or
payment shall not limit or otherwise affect the obligations of the Borrower
under the Loan Agreement or this Note.
This Note is the Ninth Amended and Restated Revolving Credit Note referred
to in the Third Amended and Restated Loan Agreement, dated as of January 22,
2003, but effective as of December 29, 2002 (as amended by that certain First
Amendment to Third Amended and Restated Loan Agreement dated as of March 28,
2004, that certain Second Amendment to Third Amended and Restated Loan Agreement
and Amendment to Real Estate Note effective as of December 26, 2004, and that
certain Third Amendment to Third Amended and Restated Loan Agreement and
Amendment to Real Estate Note effective as of June 26, 2005, the "LOAN
AGREEMENT"), and evidences the Revolving Credit Loans and all additional
Advances made by the Bank pursuant to Article II thereof. The Loan 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 Loan Agreement. Capitalized terms used in this Note and not
otherwise defined herein have the respective meanings assigned to them in the
Loan Agreement.
Notwithstanding anything to the contrary contained herein, no provision 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 the Borrower nor the sureties,
guarantors, successors or assigns of the Borrower 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 the Borrower. In determining
whether or not the interest paid or payable exceeds the Maximum Rate, the
Borrower and the Bank 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.
This Note is given in renewal, extension and modification of, but not
extinguishment or novation of, the indebtedness evidenced by that certain Eighth
Amended and Restated Revolving Credit Note effective as of December 26, 2004, in
the original principal amount of $3,000,000 executed by the Borrower and payable
to the order of the Bank.
The Borrower 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, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Note, 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 release or substitute part or all of the collateral
securing this Note, 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.
PIZZA INN, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: CFO/Treasurer
