SECOND AMENDMENT TO THE SECOND AMENDED
--------------------------------------
AND RESTATED LOAN AGREEMENT AND RELATED LOAN DOCUMENTS
------------------------------------------------------
This SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED LOAN AGREEMENT AND
RELATED LOAN DOCUMENTS (the "AMENDMENT"), dated as of January 31, 2002, but
---------
effective as of December 23, 2001 (the "EFFECTIVE DATE"), is by and between
--------------
PIZZA INN, INC., a Missouri corporation ("BORROWER"), and XXXXX FARGO BANK
--------
TEXAS, NATIONAL ASSOCIATION, a national banking association (successor by
consolidation to Xxxxx Fargo Bank (Texas), National Association) (the "BANK").
----
RECITALS:
A. The Borrower and the Bank entered into that certain Second Amended and
Restated Loan Agreement dated as of March 31, 2000 (the "AMENDED AND RESTATED
--------------------
LOAN AGREEMENT") and, pursuant to Article IV of the Amended and Restated Loan
-------------
Agreement, that certain Construction Loan Agreement dated as of December 28,
2000, (the "CONSTRUCTION LOAN AGREEMENT"), together with a Promissory Note dated
---------------------------
December 28, 2000 in the principal amount of Eight Million One Hundred
Twenty-Five Thousand and no/100 Dollars ($8,125,000.00) (the "CONSTRUCTION
------------
NOTE") and a Fixed Rate Agreement (the "FIXED RATE AGREEMENT") attached thereto
--------------------
as Exhibit A. The Construction Loan Agreement, Construction Note and Fixed Rate
---------
Agreement are hereinafter referred to as the "CONSTRUCTION LOAN DOCUMENTS."
---------------------------
B. In connection with the Amended and Restated Loan Agreement, Xxxxx Realty,
Inc., a Texas corporation, R-Check, Inc., a Texas corporation, and Pizza Inn of
Delaware, Inc., a Delaware corporation (collectively, the "GUARANTORS"),
----------
executed that certain Second Amended and Restated Guaranty dated as of March 31,
2000 in favor of the Bank (as the same may be amended, restated or modified from
time to time, the "GUARANTY").
--------
C. The Borrower and the Bank amended the Amended and Restated Loan
Agreement pursuant to that certain First Amendment to Second Amended and
Restated Loan Agreement dated as of December 28, 2000 (the "FIRST AMENDMENT").
---------------
The Amended and Restated Loan Agreement, as amended by the First Amendment, is
hereinafter referred to as the "LOAN AGREEMENT."
---------------
D. The Borrower and the Bank now desire to amend the Loan Agreement and
the Construction Loan Documents as herein set forth.
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 1.1 DEFINITIONS.
-----------
Capitalized terms used in this Amendment, to the extent not otherwise
defined herein, shall have the same meanings as in the Loan Documents as amended
hereby.
ARTICLE II.
------------
AMENDMENTS TO LOAN AGREEMENT
Section 2.1 DELETION OF DEFINITIONS. Effective as of the Effective Date, the
-------------------------
following definitions in Section 1.1 of the Loan Agreement are hereby deleted in
their entirety:
"ADJUSTED EURODOLLAR RATE"
--------------------------
"EURODOLLAR RATE"
----------------
"EURODOLLAR RATE MARGIN"
------------------------
"RESERVE REQUIREMENT"
--------------------
Section 2.2 ADDITION OF DEFINITIONS. Effective as of the Effective Date, the
-------------------------
following definitions shall be inserted in their proper alphabetical order to
Section 1.1 of the Loan Agreement:
"BASE LIBOR" means, for any Eurodollar Advance for any Interest Period, the
----------
rate per annum for United States dollar deposits quoted by the Reference Bank as
the Inter-Bank Market Offered Rate on the date that is two Business Days prior
to the Interest Period, with the understanding that such rate is quoted by the
Reference Bank for the purpose of calculating effective rates of interest for
loans making reference thereto, on the first day of an Interest Period for
delivery of funds on such date for a period of time approximately equal to the
number of days in such Interest Period, and in an amount approximately equal to
the principal amount to which such Interest Period applies. Borrower
understands and agrees that the Reference Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market indicators of
the Inter-Bank Market as the Reference Bank, in its sole discretion, deems
appropriate including, without limitation, the rate offered for United States
dollar deposits on the London Inter-Bank Market.
"LIBOR" means, for any Eurodollar Advance for any Interest Period, the rate per
-----
annum determined pursuant to the following formula: (a) Base LIBOR applicable
to such Eurodollar Advance for such Interest Period, divided by (b) one hundred
percent (100%) minus the LIBOR Reserve Percentage for such Eurodollar Advance
for such Interest Period.
"LIBOR RATE MARGIN" means, (a) with respect to the Term Loan, one and one-half
-------------------
percent (1.50%) and (b) with respect to the Revolving Credit Loans, at such time
and from time to time as the relevant Funded Debt Ratio is in one of the
following ranges, the percentage per annum set forth opposite such Funded Debt
Ratio:
PERCENTAGE FOR REVOLVING
FUNDED DEBT RATIO CREDIT LOANS
----------------- ------------
Less than 2.0 to 1.0 1.25%
-------------------- -----
2.0 to 1.0 or greater and less than 2.5 to 1.0 1.50%
-----
2.5 to 1.0 or greater and less than 3.0 to 1.0 1.75%
-----
3.0 to 1.0 or greater and less than 3.25 to 1.0 2.00%
-----
3.25 to 1.0 or greater 2.25%
---------------------- -----
The Borrower shall give written notice to the Bank of any changes in the Funded
Debt Ratio as of the end of any fiscal quarter which results in a change to the
LIBOR Rate Margin concurrently with its delivery of the items required under
Section 10.1(c) hereof, and any change to the LIBOR Rate Margin shall be
effective with respect to any Interest Period commencing after the Bank has
received such information.
"LIBOR RESERVE PERCENTAGE" means, for any Eurodollar Advance for any
--------------------------
Interest Period, the reserve percentage prescribed by the Board of Governors of
the Federal Reserve system (or any successor) for "Eurocurrency Liabilities" (as
defined in Regulation D), adjusted by the Bank for expected changes in such
reserve percentage during the applicable Interest Period.
Section 2.3 REFERENCES TO DELETED DEFINITIONS. Effective as of the Effective
---------------------------------
Date:
(a) All references to "Adjusted Eurodollar Rate" in the Loan Agreement shall
be deemed to be references to "LIBOR";
(b) All references to "Eurodollar Rate" in the Loan Agreement shall be
deemed to be references to "Base LIBOR";
(c) All references to "Eurodollar Rate Margin" in the Loan Agreement shall
be deemed to be references to "LIBOR Rate Margin"; and
(d) All references to "Reserve Requirement" in the Loan Agreement shall be
deemed to be references to "LIBOR Reserve Percentage."
Section 2.4 AMENDMENT TO DEFINITIONS.
--------------------------
Effective as of the Effective Date, the following definitions in Section 1.1
of the Loan Agreement are hereby amended and restated in their entirety to read
as follows:
"COMMITMENT FEE RATE" means, at such times and from time to time as the
---------------------
relevant Funded Debt Ratio is in one of the following ranges, the percentage per
annum set forth opposite such Funded Debt Ratio:
FUNDED DEBT RATIO COMMITMENT FEE RATE
----------------- -------------------
Less than 2.0 to 1.0 0.375%
-------------------- ------
2.0 to 1.0 or greater and less than 2.5 to 1.0 0.375%
------
2.5 to 1.0 or greater and less than 3.0 to 1.0 0.375%
------
3.0 to 1.0 or greater and less than 3.25 to 1.0 0.50%
-----
3.25 to 1.0 or greater 0.50%
---------------------- -----
"EBITDA" means, for the preceeding 12 month period, Consolidated Net Income
------
calculated before federal income taxes, plus (a) depreciation and amortization
--- ----
and interest expenses, plus (b) terminated rent expenses prior to and ending on
----
November 30, 2001, to include (i) rent expense, including, without limitation,
base rent, CAM charges and repairs and maintenance, and (ii) associated rent
expenses incurred in connection with the Norco distribution warehouse located at
000 Xxxxxx X, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxx 00000, the Borrower's corporate
headquarters located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and
the Borrower's training center located at 0000 Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxx
00000, minus (c) any extraordinary gains or losses of the Borrower during the
-----
period in question.
"EURODOLLAR ADVANCES" means Advances the interest rates on which are determined
--------------------
on the basis on the rates referred to in the definition of LIBOR in this Section
1.1.
"FIXED CHARGE COVERAGE RATIOFIXED CHARGE COVERAGE RATIO" means, at any time,
---------------------------------------------------------
the quotient determined by dividing (a) the sum of (i) EBITDA for the preceding
twelve (12) calendar months, minus (ii) treasury stock purchases made by the
Borrower for the preceding twelve (12) calendar months, minus (iii) dividends
paid by the Borrower during the preceding twelve (12) calendar months, by (b)
the sum of (i) all scheduled payments on all Long Term Debt of the Borrower and
the Subsidiaries and all scheduled payments under Capital Lease Obligations of
the Borrower and the Subsidiaries to be paid during the next twelve (12)
calendar months, plus (ii) interest expenses and tax expenses (to the extent
paid in cash) of the Borrower and the Subsidiaries for the preceding twelve (12)
calendar months.
"FUNDED DEBT RATIO" means, at any time, the quotient determined by dividing (a)
------------------
the sum of all Debt for borrowed money, Capital Lease Obligations and purchase
money Debt of the Borrower and the Subsidiaries, by (b) EBITDA for the preceding
twelve (12) complete fiscal months.
"PRIME RATE MARGIN" means, (a) with respect to the Term Loan, a deduction of
-------------------
three-fourths of one percent (-0.75%) and (b) with respect to the Revolving
Credit Loans, at any time, the following percentage determined by reference to
the Funded Debt Ratio then existing:
FUNDED DEBT RATIO PERCENTAGE FOR REVOLVING CREDIT LOANS
----------------- -------------------------------------
Less than 2.0 to 1.0 -1.00
-------------------- -----
2.0 to 1.0 or greater and less than 2.5 to 1.0 -0.75%
------
2.5 to 1.0 or greater and less than 3.0 to 1.0 -0.50%
------
3.0 to 1.0 or greater and less than 3.25 to 1.0 -0.25%
------
3.25 to 1.0 or greater 0.00%
---------------------- -----
"REVOLVING CREDIT NOTE" means the Fifth Amended and Restated Revolving Credit
-----------------------
Note executed by the Borrower and payable to the order of the Bank in the
-
aggregate principal amount of the Revolving Credit Commitment, in substantially
-
the form of Exhibit A hereto, together with all amendments, modifications and
---------
renewals thereof.
"TERMINATION DATE" means 10:00 A.M. Dallas, Texas time on December 31, 2003, or
-----------------
such earlier date and time on which the Revolving Credit Commitment terminates
as provided in this Agreement; provided, however, if such date is not a Business
Day, the "Termination Date" shall be the first Business Day following such date.
Section 2.5 AMENDMENT OF EXHIBIT A. Effective as of the Effective Date, Exhibit
----------------------
A to the Loan Agreement is deleted and a new Exhibit A, attached as Exhibit
A to this Amendment, is inserted in its place.
Section 2.6 AMENDMENT TO SECTION 11.4.
Effective as of the Effective Date, Section 11.4 of the Loan Agreement
is hereby amended and restated in its entirety to read as follows:
(b) Restricted Payments. The Borrower will not declare or pay any
--------------------
dividends or make any other payment or distribution (whether in cash, property,
or obligations) on account of its capital stock, or redeem, purchase, retire, or
otherwise acquire any of its capital stock, or permit any of its Subsidiaries to
purchase or otherwise acquire any capital stock of the Borrower or another
Subsidiary, or set apart any money for a sinking or other analogous fund for any
dividend or other distribution on its capital stock or for any redemption,
purchase, retirement, or other acquisition of any of its capital stock; provided
that the foregoing restrictions do not prohibit (a) dividend payments on any
class of capital stock payable solely in shares of capital stock of the
Borrower; (b) payments of dividends from any Subsidiary to the Borrower; (c)
payments in lieu of taxes to the Borrower or a Subsidiary pursuant to a tax
sharing agreement; (d) any exchange of stock not involving any cash
consideration pursuant to a stock option plan for employees or directors of the
Borrower; and (e) any other redemption, purchase, retirement or the acquisition
of the Borrower's capital stock or payment of cash dividends upon obtaining the
prior written approval of the Bank, it being understood that, based on
performance, the Borrower may request the Bank to consider granting its approval
of restricted payments on a quarterly basis, or at such other time as deemed
necessary.
Section 2.7 AMENDMENT TO SECTION 12.2.
----------------------------
Effective as of the Effective Date, Section 12.2 of the Loan Agreement
is hereby amended and restated in its entirety to read as follows:
Section 12.2. Funded Debt Ratio. The Borrower will maintain, as of the
-------------------
end of each fiscal quarter, a Funded Debt Ratio of not greater than (a) 3.25 to
1.00 for the three (3) fiscal quarters ending on or around December 31, 2001,
March 31, 2002, and June 30, 2002, respectively, (b) 3.00 to 1.00 for the next
three (3) consecutive fiscal quarters ending on or around September 30, 2002,
December 31, 2002 and March 31, 2003, respectively, and (c) 2.75 to 1.00 for the
fiscal year ending on or around June 30, 2003, and at all times thereafter.
ARTICLE III.
-------------
AMENDMENTS TO CONSTRUCTION LOAN DOCUMENTS
Section 3.1 AMENDMENTS TO CONSTRUCTION LOAN AGREEMENT
---------------------------------------------
(a) Amendment to Definitions.
--- --------------------------
Effective as of the Effective Date, the following definition in Section
1.1 of the Construction Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"LOAN CONVERSION" - The conversion of the Loan from the Construction Loan
----------------
to the Mini-Perm Loan all in accordance with the provisions of Section 2.4
hereof. The effective date of the Loan Conversion shall be the first (1st) day
of the calendar month following the satisfaction of the Loan Conversion
requirements set forth in Section 2.4, which effective date shall not be later
than February 1, 2002.
(b) Amendment to Section 2.4
--- ---------------------------
Effective as of the Effective Date, the last sentence of Section 2.4 of the
Construction Loan Agreement is hereby amended and restated in its entirety to
read as follows:
To the extent Loan Conversion has not occurred by February 1, 2002, then
Borrower shall not thereafter be eligible for Loan Conversion.
(c) Amendment to Section 2.5. Effective as of the Effective Date, Section
--- ----------------------------
2.5 of the Construction Loan Agreement is hereby amended and restated in its
entirety to read as follows:
Section 2.5. Maturity Date. The Maturity Date of the Loan means (a) at
-------------
all times prior to Loan Conversion, February 1, 2002, and (b) if Loan Conversion
occurs on or before February 1, 2002, then December 28, 2007; subject to the
right of acceleration provided herein and elsewhere in the Loan Documents, at
which time all sums due and owing under this Agreement and the other Loan
Documents shall be repaid in full. All payments due to Lender under this
Agreement, whether at the Maturity Date or otherwise, shall be paid in
immediately available funds.
Section 3.2 AMENDMENTS TO FIXED RATE AGREEMENT
--------------------------------------
(a) DELETION OF DEFINITIONS. Effective as of the Effective Date,
--------------------------
the following definitions in Section 1 of the Fixed Rate Agreement are hereby
deleted in their entirety:
"ADJUSTED EURODOLLAR RATE"
--------------------------
"EURODOLLAR RATE"
----------------
"EURODOLLAR RATE MARGIN"
------------------------
"RESERVE REQUIREMENT"
--------------------
(b)ADDITION OF DEFINITIONS. Effective as of the Effective Date, the
-------------------------
following definitions shall be inserted in their proper alphabetical order to
Section 1 of the Fixed Rate Agreement:
"BASE LIBOR" means, for any Eurodollar Advance for any Interest Period, the
----------
rate per annum for United States dollar deposits quoted by the Reference Bank as
the Inter-Bank Market Offered Rate on the date that is two Business Days prior
to the Interest Period, with the understanding that such rate is quoted by the
Reference Bank for the purpose of calculating effective rates of interest for
loans making reference thereto, on the first day of an Interest Period for
delivery of funds on such date for a period of time approximately equal to the
number of days in such Interest Period, and in an amount approximately equal to
the principal amount to which such Interest Period applies. Borrower
understands and agrees that the Reference Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market indicators of
the Inter-Bank Market as the Reference Bank, in its sole discretion, deems
appropriate including, without limitation, the rate offered for United States
dollar deposits on the London Inter-Bank Market.
"LIBOR" means, for any Eurodollar Advance for any Interest Period, the rate per
-----
annum and determined pursuant to the following formula: (a) Base LIBOR
applicable to such Eurodollar Advance for such Interest Period, divided by (b)
one hundred percent (100%) minus the LIBOR Reserve Percentage for such
Eurodollar Advance for such Interest Period.
"LIBOR RATE MARGIN" means one and one-half percent (1.50%).
-------------------
"LIBOR RESERVE PERCENTAGE" means, for any Eurodollar Advance for any Interest
--------------------------
Period, the reserve percentage prescribed by the Board of Governors of the
Federal Reserve system (or any successor) for "Eurocurrency Liabilities" (as
defined in Regulation D), adjusted by the Bank for expected changes in such
reserve percentage during the applicable Interest Period.
(c) REFERENCES TO DELETED DEFINITIONS. Effective as of the
------------------------------------
Effective Date:
(i) All references to "Adjusted Eurodollar Rate" in the Fixed Rate Agreement
shall be deemed to be references to "LIBOR";
(ii) All references to "Eurodollar Rate" in the Fixed Rate Agreement shall
be deemed to be references to "Base LIBOR";
(iii) All references to "Eurodollar Rate Margin" in the Fixed Rate Agreement
shall be deemed to be references to "LIBOR Rate Margin"; and
(iv) All references to "Reserve Requirement" in the Fixed Rate Agreement
shall be deemed to be references to "LIBOR Reserve Percentage."
(d) AMENDMENT TO DEFINITIONS. Effective as of the Effective Date,
------------------------
the following definitions in Section 1 of the Fixed Rate Agreement are hereby
amended and restated in their entirety to read as follows:
"EURODOLLAR ADVANCES" means Advances the interest rates on which are
--------------------
determined on the basis of the rates referenced to in the definition of LIBOR.
"MATURITY DATE" means (a) at all times prior to Loan Conversion, February 1,
--------------
2002, and (b) if Loan Conversion occurs on or before February 1, 2002, then
--
December 28, 2007.
--
ARTICLE IV.
------------
CONDITIONS PRECEDENT
Section 4.1 CONDITIONS. The effectiveness of this Amendment is subject to the
----------
satisfaction of the following conditions precedent on or prior to February 15,
2002 (where applicable):
(a) The Bank shall have received all of the following, in form and substance
satisfactory to the Bank:
(1) Resolutions. Resolutions of the Board of Directors of the Borrower and
--- -----------
each Guarantor certified by its Secretary or an Assistant Secretary which
authorize the execution, delivery, and performance by the Borrower and each
Guarantor of this Amendment and the other Loan Documents to which the Borrower
or such Guarantor is or is to be a party hereunder;
(2) Incumbency Certificate. A certificate of incumbency certified by the
--- -----------------------
Secretary or an Assistant Secretary of the Borrower and each Guarantor
--
certifying the names of the officers of the Borrower and each Guarantor
--
authorized to sign this Amendment and each of the other Loan Documents to which
--
the Borrower or such Guarantor is or is to be a party hereunder (including the
certificates contemplated herein), together with specimen signatures of such
officers;
(3) Articles of Incorporation. A certificate certified by the Secretary or
--- --------------------------
an Assistant Secretary of the Borrower and each Guarantor certifying that the
articles of incorporation of the Borrower and each Guarantor have not been
amended or modified since March 31, 2000 and are still in full force and effect;
(4) Bylaws. A certificate certified by the Secretary or an Assistant
--- ------
Secretary of the Borrower and each Guarantor certifying that the bylaws of the
---
Borrower and each Guarantor have not been amended or modified since March 31,
2000 and are still in full force and effect; and
(5) Governmental Certificates. Certificates of the appropriate government
--- --------------------------
officials of the state of incorporation of the Borrower and each Guarantor as to
the existence and good standing of the Borrower and each Guarantor, each dated
no earlier than ten (10) days prior to the date hereof.
(b) Borrower shall have executed and delivered to the Bank the Revolving
Credit Note in the form attached hereto as Exhibit A.
----------
(c) 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 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) 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 the Bank and its legal
counsel, Xxxxxx & Xxxxxx L.L.P.
ARTICLE V.
-----------
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 5.1 RATIFICATIONS.
-------------
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Loan Agreement
or the Construction Loan Documents, as applicable (each, a "MODIFIED DOCUMENT"
-----------------
and collectively, the "MODIFIED DOCUMENTS"), and except as expressly modified
------------------
and superseded by this Amendment, the terms and provisions of the Modified
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower and the Bank agree that the Modified Documents as amended
hereby shall continue to be legal, valid, binding and enforceable in accordance
with their terms.
Section 5.2 REPRESENTATIONS AND WARRANTIES.
--------------------------------
The Borrower hereby represents and warrants to the Bank 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 action on the part of the Borrower and will not
violate the articles of incorporation or bylaws of the Borrower, (ii) the
representations and warranties contained in the Modified Documents, 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 material compliance with all covenants and agreements
contained in the Modified Documents as amended hereby.
ARTICLE VI.
------------
MISCELLANEOUS
Section 6.1 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 the Bank or any closing shall
affect the representations and warranties or the right of the Bank to rely upon
them.
Section 6.2 REFERENCE TO AGREEMENT.
------------------------
Each of the Loan Documents, including the Modified Documents 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 Loan
Agreement as amended hereby, are hereby amended so that any reference in such
Loan Documents to the Modified Documents shall mean a reference to the Modified
Documents as amended hereby.
Section 6.3 EXPENSES OF BANK.
------------------
As provided in the Loan Agreement, the Borrower agrees to pay on demand
all costs and expenses incurred by the Bank 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 the
Bank's legal counsel in connection therewith, and all costs and expenses
incurred by the Bank in connection with the enforcement or preservation of any
rights under the Loan Agreement, as amended hereby, or any other Loan Document,
including without limitation the costs and fees of the Bank's legal counsel.
Section 6.4 SEVERABLITY.
-----------
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 6.5 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 6.6 SUCCESSORS AND ASSIGNS.
------------------------
This Amendment is binding upon and shall inure to the benefit of the
Bank and the Borrower and their respective successors and assigns, except the
Borrower may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Bank.
Section 6.7 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 6.8 EFFECT OF WAIVER.
------------------
No consent or waiver, express or implied, by the Bank to or for any
breach of or deviation from any covenant, condition or duty by the Borrower or
any of the Guarantors shall be deemed a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty.
Section 6.9 HEADINGS.
--------
The headings, captions, and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
Section 6.10 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 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 AGREEMENT AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank]
Executed as of the date first written above.
Borrower:
PIZZA INN, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
BANK:
XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCATION
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President
Each of the Guarantors hereby consents and agrees to this Amendment and agrees
that the Guaranty shall remain in full force and effect and shall continue to be
the legal, valid and binding obligation of such Guarantor enforceable against
such Guarantor in accordance with its terms.
Guarantors:
XXXXX REALTY, INC.
R-CHECK, INC.
PIZZA INN OF DELAWARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
EXHIBIT A
-------
FORM OF REVOLVING CREDIT NOTE
-----------------------------
