SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
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This Second Amendment to Amended and Restated Loan Agreement (this
"Amendment") executed on September 30, 1999, is dated as of August 31, 1999 by
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and among PIZZA INN, INC., a Missouri corporation (the "Borrower"), and XXXXX
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FARGO BANK (TEXAS), NATIONAL ASSOCIATION (the "Lender").
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R E C I T A L S:
WHEREAS, Borrower and Lender have entered into that certain Amended and
Restated Loan Agreement dated as of August 28, 1997, as amended by that certain
First Amendment to Amended and Restated Loan Agreement dated as of September 14,
1998 (as the same has been and may be amended, modified or supplemented from
time to time, the "Agreement"), pursuant to which Lender made revolving credit
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loans available to Borrower under the terms and provisions stated therein; and
WHEREAS, pursuant to the 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
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certain Amended and Restated Guaranty Agreement dated as of August 28, 1997 (the
"Guaranty") which guaranteed to Lender the payment and performance of the
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Obligations (as defined in the Agreement);
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WHEREAS, Borrower has requested Lender to (a) amend certain provisions of
the investment covenant, and (b) extend the Termination Date; and
WHEREAS, Lender is willing to amend the Agreement as hereinafter provided;
and
WHEREAS, Borrower and Lender now desire to amend the Agreement 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:
1 ARTICLE
DEFINITIONS
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1.1 Section Definitions. Capitalized terms used in this Amendment,
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to the extent not otherwise defined herein, shall have the same meaning as in
the Agreement, as amended hereby.
2 ARTICLE
AMENDMENTS
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2.1 Section Amendments to Section 1.1. Effective as of the date
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hereof, the definition of "Termination Date" in Section 1.1 of the Agreement is
amended by deleting the reference to "August 30, 2000" and substituting therefor
"August 30, 2001".
2.2 Section Amendment to Section 9.5(f). Effective as of the date
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hereof, Section 9.5(f) of the Agreement is amended in its entirety to read as
follows:
(f) loans or advances to (i) employees of the Borrower in the ordinary
course of business not to exceed $100,000 to any one individual or $250,000 in
the aggregate and (ii) shareholders of the Borrower in an amount not to exceed
$2,750,000 in the aggregate to enable such shareholders to exercise their vested
options to purchase stock of the Borrower;
2.3 Section Deletion of Section 10.2. Effective as of the date
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hereof, Section 10.2 of the Agreement is deleted in its entirety.
3 ARTICLE
CONDITIONS PRECEDENT
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3.1 Section Conditions. The effectiveness of this Amendment is
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subject to the satisfaction of the following conditions precedent:
(a) Lender shall have received all of the following, each dated
(unless otherwise indicated) the date of this Amendment, in form and substance
satisfactory to Lender:
(i) Amendment. This Amendment, duly executed by Borrower and
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each Guarantor;
(ii) Third Amended and Restated Revolving Credit Note. A Third Amended
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and Restated Revolving Credit Note in the form of Annex I attached hereto, duly
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executed by Borrower; and
(iii) Additional Information. Such additional documents, instruments
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and information as Lender or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.,
may reasonably request.
(b) 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.
(c) 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.
(d) 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 Lender and its
legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
4 ARTICLE
MISCELLANEOUS
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4.1 Section Ratifications, Representations and Warranties. Except as
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expressly modified and superseded by this Amendment, the terms and provisions of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower agrees that the representations and
warranties contained herein and in all other Loan Documents, as amended hereby,
are true and correct as of, and as if made on, the date hereof. Borrower and
Lender agree that the Agreement as amended hereby and all other documents
executed in connection with the Agreement or this Amendment to which Borrower or
any Guarantor is a party shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms
4.2 Section Reference to the Agreement. Each of the Loan Documents,
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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.
4.3 Section Expenses of Lender. As provided for in the Agreement,
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Borrower agrees to pay on demand all reasonable cost and expenses incurred by
Lender in connection with the preparation, negotiation, 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 reasonable cost of Lender's legal counsel, and all reasonable costs and
expenses incurred by Lender in connection with the enforcement or preservation
of any rights under the Agreement, as amended hereby, or any other Loan
Documents.
4.4 Section Severability. Any provisions of this Amendment held by
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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 provisions so held to be invalid or unenforceable.
4.5 Section Applicable Law. This Amendment and all other Loan
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Documents executed pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Texas.
4.6 Section Successors and Assigns. This Amendment is binding upon
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and shall enure to the benefit of Lender and Borrower and their respective
successors and assigns.
4.7 Section Counterparts. This Amendment may be executed in one or
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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.
4.8 Section Headings. The headings, captions, and arrangements used
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in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
4.9 Section NO ORAL AGREEMENTS. THIS AMENDMENT AND ALL OTHER
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INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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EXECUTED as of the day and year first above written.
BORROWER:
PIZZA INN, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
LENDER:
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Banking Officer
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.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
R-CHECK, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
