EXHIBIT 10.22
SECOND AMENDMENT TO
AGREEMENT
THIS AGREEMENT, made this 21st day of March, 1997, by and between AUSTINS
STEAKS & SALOON, INC., a Nebraska corporation ("BORROWER") and First National
Bank of Omaha, a national banking association with principal business offices
in Omaha, Nebraska ("BANK").
Whereas, BANK and BORROWER executed an Agreement dated August 31, 1996,
and February 7, 1997, (the Agreement together with all amendments thereto is
referred to herein as "AGREEMENT").
Whereas, the parties hereto desire to amend the AGREEMENT.
Now, therefore, in consideration of the AGREEMENT, and their mutual
covenants herein, the parties hereto agree as follows:
1. Terms which are typed herein as all capitalized words and are not defined
herein shall have the same meanings as when described in the AGREEMENT.
2. Paragraph 1. of the AGREEMENT is hereby amended to read, effective
immediately:
1. ACKNOWLEDGMENT OF DEBT. The principal balance of the OBLIGATION is
$358,657.27 as of the date hereof. In addition, the OBLIGATION consists of
interest accrued and costs and attorney fees incurred by BANK.
3. Paragraph 3. of the AGREEMENT is hereby amended to read, effective
immediately:
3. PAYMENTS AND INTEREST. As described in the NOTE, BORROWER agrees to
pay the sum of $5,000.00 per week to BANK, commencing March 28, 1997, until
January 16, 1998, when the entire OBLIGATION shall be due and payable in a
single installment on such date. Each weekly payment shall be applied first
to any costs, fees or charges outstanding, thence to interest on the NOTE,
and finally to principal. Interest shall accrue on the NOTE from March 21,
1997 as described in the NOTE.
4. BORROWER certifies by its execution hereof that all of the representations
and warranties set forth in the AGREEMENT are true as of this date, and that
no EVENT OF DEFAULT under the AGREEMENT, and no event which, with the giving
of notice or passage of time or both, would become such an EVENT OF DEFAULT,
has occurred as of execution hereof, except as disclosed to BANK. All other
terms and conditions of the AGREEMENT not affected or amended by this
AGREEMENT, are hereby ratified and confirmed.
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In witness whereof, the parties have set their hands on this 27 day of
March, 1997.
FIRST NATIONAL BANK OF OMAHA
By /s/ ILLEGIBLE
--------------------------------
Its Commercial Loan Officer
--------------------------------
AUSTINS STEAKS & SALOON, INC.
a/k/a AUSTINS STEAKS AND SALOON, INC.
By /s/ Xxxx Xxxx Xxxxx
--------------------------------
Its CFO
--------------------------------
Acknowledged by Guarantors:
AUSTINS OF ALBUQUERQUE, INC. AUSTINS 72ND, INC.
By /s/ Xxxx Xxxx Xxxxx By /s/ Xxxx Xxxx Xxxxx
-------------------------------- --------------------------------
Its CFO Its CFO
-------------------------------- --------------------------------
AUSTINS SCOTTSDALE, INC. AUSTINS OMAHA, INC.
By /s/ Xxxx Xxxx Xxxxx By /s/ Xxxx Xxxx Xxxxx
-------------------------------- --------------------------------
Its CFO Its CFO
-------------------------------- --------------------------------
AUSTINS OLD MARKET, INC. AUSTINS OF NEW MEXICO, INC.
By /s/ Xxxx Xxxx Xxxxx By /s/ Xxxx Xxxx Xxxxx
-------------------------------- --------------------------------
Its CFO Its CFO
-------------------------------- --------------------------------
MISSOURI DEVELOPMENT COMPANY AUSTINS LINCOLN, INC.
By /s/ Xxxx Xxxx Xxxxx By /s/ Xxxx Xxxx Xxxxx
-------------------------------- --------------------------------
Its CFO Its CFO
-------------------------------- --------------------------------
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MAKER
-----------------------------
[LOGO] Austins Steaks & Saloon, Inc. PROMISSORY
FIRST NATIONAL BANK NOTE
of omaha
-----------ADDRESS-----------
6490 "O" Street, Xxxxx 000
Xxxxxxx, XX 00000
-----------------------------
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PRINCIPAL AMOUNT INTEREST RATE NOTE DATE MATURITY DATE OBLIGOR # NOTE #
----------------------------------------------------------------------------------------------------------------
$358,657.27 VARIABLE 03/21/97 01/16/98 2000024165 RL#1 RC#1
REG + 1.0000%
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Maker promises to pay to the order of First National Bank of Omaha ('Bank')
at any of its offices, the principal sum hereof, which shall be:
(NON-REVOLVING) THE LESSER OF THREE HUNDRED FIFTY-EIGHT THOUSAND SIX HUNDRED
FIFTY-SEVEN AND 27/100 DOLLARS OR SO MUCH THEREOF AS MAY HAVE BEEN ADVANCED
BY BANK.
Interest shall accrue on the outstanding principal amount from and including
the Note Date above to the Maturity Date at the rate of: 1.0000% PER ANNUM
OVER THE RATE IN EFFECT FROM TIME TO TIME AND DESIGNATED BY BANK AS ITS
REGIONAL BASE RATE ('BASE RATE').
Interest shall be computed on the basis of actual days elapsed and a year of
360 days. The unpaid principal and interest due on this Note at maturity
(whether the Note matures by demand, acceleration, lapse of time or
otherwise) shall bear interest at the lesser of 6% per annum above the
interest rate stated above, or the highest rate allowed by law.
Principal and interest shall be paid as follows:
IN EQUAL INSTALLMENTS OF $5,000.00 (EXCEPT FINAL INSTALLMENT SHALL BE BALANCE
DUE) BEGINNING MARCH 28, 1997 AND ON THE SAME DAY OF EACH WEEK THEREAFTER.
EACH INSTALLMENT WILL BE APPLIED FIRST TO INTEREST AND THEN TO PRINCIPAL.
FINAL INSTALLMENT DUE ON MATURITY DATE.
Related Documents: Maker has signed the following documents in connection
with this Note;
SECURITY AGREEMENT(S) DATED 10/31/94 & 6/1/96 (HYPOTHECATIONS) COVERING ALL
CORPORATE ASSETS OF AUSTINS RESTAURANTS.
ASSIGNMENT(S) OF COLLATERAL DATED 10/10/96 COVERING LEASES (8 PROPERTIES).
AGREEMENT DATED 8/31/96
MORTGAGE ON RIO RANCHO PROPERTY
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THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THE REVERSE SIDE,
AND ANY APPLICABLE LOAN AGREEMENT.
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A credit agreement must be in writing to be enforceable under Nebraska law.
To protect you and us from any misunderstandings or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money
or grant or extension of credit, or any amendment of, cancellation of, waiver
of, or substitution for any or all of the terms or provisions of any
instrument or document executed in connection with this loan of money or
grant or extension of credit, must be in writing to be effective.
Witnessed By: Austins Steaks & Saloon, Inc.
/s/ ILLEGIBLE By: /s/ Xxxx Xxxx Xxxxx Title: CFO
---------------------------------- --------------------- ----
COPY
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Officer Initials Officer # Cost Center New/Renewal Prepared By MEMO CALC TYPE LOAN CALC ID
-----------------------------------------------------------------------------------------------------------------------------
224-MKM 101010 Repl tsq Replacement-$ amount Comm #8 2000024165/1
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TERMS AND CONDITIONS
1. Maker shall reimburse Bank for all expenses incurred in protecting or
enforcing its rights.
Maker's liability under its Obligations ("all Maker's existing and future
obligations of whatever nature and whenever incurred to Bank") shall not be
affected by any of the following:
- Acceptance or retention by Bank of other property or interests as security
for the Obligations, or for the liability of any person other than a Maker
with respect to the Obligations;
- Any release, extension, renewal, modification or compromise of any of the
Obligations or the liability of any obligor thereon; or
- Failure by Bank to resort to other security or any person liable for the
Obligations.
Each maker specifically consents to multiple renewals or extensions of the
Obligations. This Note shall be deemed extended through the date of any
advance made by Bank after the original maturity hereof; and any such
advance shall constitute principal due under this Note.
2. REPRESENTATION, WARRANTIES AND COVENANTS. Each Maker represents, warrants
and covenants as follows:
This Note, security agreement, deed of trust, mortgage, or other lien
document(s), if any, securing the Note have been duly authorized, executed
and delivered by the Maker and constitute legal, valid and binding
Obligations of Maker.
This Note evidences a loan for business or agricultural purposes.
Maker will provide business reports and with such frequency as Bank
shall request; and Maker agrees to pay all costs of collection in connection
with this Note, including reasonable attorneys' fees and legal expenses.
3. DEFAULTS AND REMEDIES. Upon the occurrence of one of more of the
following events of default:
- Maker fails to pay when due any of the Obligations, or to perform or
rectify breach of, any warranty or other undertaking by Maker in this
Note or the other Obligations; or breaches any other covenant or
condition described in any other document;
- Any Maker, endorser, surety, or guarantor of any of the Obligations dies,
ceases to exist, makes an assignment for the benefit of creditors, becomes
insolvent or the subject of bankruptcy or insolvency proceedings;
- Any representation made to induce Bank to extend credit under this Note or
otherwise is false in any material respect when made;
- A material adverse change, in the opinion of Bank, occurs in the financial
or business condition of any Maker or of any endorser, surety or guarantor
of this Note;
- The entry of a judgement against Maker;
- Filing of any lien against any Maker;
- The taking possession of any substantial part of the property of any Maker
at the instance of any governmental authority;
- The dissolution, merger, consolidation, or reorganization of any Maker, or
other entity liable for this Obligation;
- Any other event occurs which causes Bank in good faith to deem itself
insecure;
then in such event, all of the Obligations shall, at the option of Bank and
without notice or demand, mature and become immediately due and payable; and
Bank shall have all rights and remedies for default provided by the Uniform
Commercial Code, and any other applicable law and/or Obligations.
All costs and expenses incurred by Bank in enforcing its rights under this
Note or any mortgage or other lien, endorsement, surety agreement, guarantee
relating thereto are the obligations of Maker and are immediately due and
payable. Interest shall accrue on such costs and expenses from the date of
incurrence at the rate specified herein for delinquent Note payments. Each
Maker, endorser, surety and guarantor hereby waives presentment, protest,
demand, notice of dishonor, and the defense of any statute of limitations.
4. GENERAL. Without affecting the liability of any Maker, endorser, surety,
or guarantor, the holder may, without notice, renew or extend the time for
payment, accept partial payments, release or impair any collateral security
for the payment of this Note or agree to xxx any party liable on it.
Subject to rights afforded by law, Bank may, at any time and for any reason,
charge to or off-set against any amount then on deposit in any account
(including a savings certificate), whether or not then due, any, and all
debts or liabilities (sole, several, joint, or joint and severable, absolute
or contingent, due or not due, liquidated or unliquidated, secured or
unsecured) then owed to Bank by depositor or in the case of a multiple-party
account, by any party to such multiple-party account, and this agreement
shall be construed to be the consent of depositor and any such party for the
Bank to make such charge or off-set if consent be required by any person of
future law.
Bank shall not be deemed to have waived any of its rights upon or under this
Note, or under any mortgage or other lien, endorsement, surety agreement, or
guarantee unless such waivers be in writing and signed by Bank. No delay or
omission on the part of Bank in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall
not be construed as a bar to or waiver of any right on any future occasion.
All rights and remedies of Bank on liabilities or the collateral whether
evidenced hereby or by any other instrument or papers shall be cumulative
and may be exercised singularly or concurrently.
Maker, if more than one, shall be jointly and severally liable hereunder and
all provisions hereof regarding the liabilities or security of Maker shall
apply to any liability or any security of any or all of them. This agreement
shall be binding upon the heirs, executors, administrators, assigns or
successors of Maker; shall constitute a continuing agreement, applying to
all future as well as existing transaction, whether or not of the character
contemplated at the date of this Note, and if all transactions between Bank
and Maker shall be at any time closed, shall be equally applicable to any
new transactions thereafter; shall benefit Bank, its successors, and
assigns; and shall so continue in force not withstanding any change in any
partnership party hereto, whether such change occurs through death,
retirement or otherwise.
If any party of this Note is a married person, such person or persons hereby
separately charges his or her separate estate, including both that now owned
and that hereafter acquired, with the payment of this Note.
This Note shall be construed according to the laws of the State of Nebraska.
Unless the content otherwise requires, all terms used herein which are
defined in the Uniform Commercial Code shall have the meanings therein
stated.
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
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