Exhibit 10.13
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into
as of October 28, 2011, by and between NOBLE ROMAN'S INC., an Indiana
corporation, PIZZACO, INC., an Indiana corporation and N.R. Realty, Inc., an
Indiana corporation (individually and collectively, as the context requires,
which such determination to be made by Lender in its sole discretion,
"Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Lender").
RECITALS
A. Borrower is currently indebted to Lender pursuant to the terms and
conditions of that certain Loan Agreement between Borrower and Lender, dated as
of August 25, 2005, as amended by First Amendment to Loan Agreement dated as of
February 4, 2008, Second Amendment to Loan Agreement entered into on November 9,
2010 but effective as of October 1, 2010, Third Amendment to Loan Agreement
entered into on March 14, 2011 but effective as of March 1, 2011, and Fourth
Amendment to Loan Agreement entered into on July 19, 2011 (as so amended and as
amended from time to time, the "Loan Agreement").
B. Pursuant to the Loan Agreement, Borrower remains indebted to Lender
under a Loan in the maximum principal amount of $12,000,000.00 consisting of (a)
the advance made by the Lender to the Borrower in the amount of $9,000,000.00 on
the Closing Date and (b) the Additional Advance(the outstanding principal
balance of the Loan has been reduced to $3,650,000.00). The Loan is evidenced by
that certain Note dated August 25, 2005, as amended on February 4, 2008.
Lender and Borrower have agreed to certain changes in the terms and
conditions set forth in the Loan Agreement and have agreed to amend the Loan
Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Loan
Agreement shall be amended as follows; provided, however , that nothing shall
terminate any security interests, guaranties or subordinations in favor of
Lender and all such security interests, guaranties and subordinations shall
remain in full force and effect:
Section 1.01 of the Loan Agreement is hereby amended by amending and
restating the following definition in its entirety as follows:
"Required Principal Amortization Payment" means on each date set forth
below the corresponding amount set forth below.
Date Amount
---- -------
November 1, 2011 $0
December 1, 2011 $125,000
January 1, 2012 $125,000
February 1, 2012 $200,000
March 1, 2012 $200,000
April 1, 2012 $200,000
-1-
May 1, 2012 $200,000
June 1, 2012 $200,000
July 1, 2012 $200,000
August 1, 2012 $200,000
September 1, 2012 $200,000
October 1, 2012 $1,800,000"
The foregoing change shall become effective upon the execution and
delivery to Lender of this Amendment and the satisfaction of all conditions
precedent contained herein.
In consideration of the changes set forth herein and as a condition to
the effectiveness hereof, immediately upon signing this Amendment Borrower shall
pay to Bank a non-refundable fee of $2,500.00.
Conditions Precedent . The obligation of Lender to amend the terms and
conditions of the Loan Agreement as provided herein, is subject to the
fulfillment to Lender's satisfaction of all of the following conditions by no
later than October 28, 2011:
(a) Lender shall have received, in form and substance satisfactory to
Lender, each of the following:
(i) This Amendment.
(ii) Such other documents as Lender may require under any other
section of this Amendment.
(b) In addition to Borrower's obligations under the Loan Agreement and
the other Loan Documents, Borrower shall have paid to Lender the full amount of
all costs and expenses, including reasonable attorneys' fees (including the
allocated costs of Lender's in-house counsel) expended or incurred by Lender in
connection with the negotiation and preparation of this Amendment, for which
Lender has made demand.
Release. In consideration of Lender's entering into this Amendment,
Borrower hereby fully and unconditionally releases and forever discharges
Lender, and its respective directors, officers, employees, subsidiaries,
branches, affiliates, attorneys, agents, representatives, successors and assigns
and all persons, firms, corporations and organizations acting on any of their
behalves (collectively, the "Released Parties"), of and from any and all claims,
allegations, causes of action, costs or demands and liabilities, of whatever
kind or nature, from the beginning of the world to the date on which this
Amendment is executed, whether known or unknown, liquidated or unliquidated,
fixed or contingent, asserted or unasserted, foreseen or unforeseen, matured or
unmatured, suspected or unsuspected, anticipated or unanticipated, which any
Borrower or any Subsidiary has, had, claims to have or to have had or hereafter
claims to have or have had against the Released Parties by reason of any act or
omission on the part of the Released Parties, or any of them, on account of or
in any way related to the Loan Agreement, including the administration or
enforcement of the Loan Agreement occurring prior to the date on which this
Amendment is executed, including all such loss or damage of any kind heretofore
sustained or that may arise as a consequence of the dealings among the parties
up to and including the date on which this Amendment is executed (collectively,
all of the foregoing are the "Claims"). Borrower represents and warrants that it
has no knowledge of any Claim by it or by any Subsidiary against the Released
Parties or of any facts or acts or omissions of the Released Parties which on
the date hereof would be the basis of a Claim by it or by any
-2-
Subsidiary or any other Loan Party against the Released Parties which is not
released hereby, and Borrower represents and warrants that the foregoing
constitutes a full and complete release of all Claims by or on behalf of each
Borrower and any Subsidiary. The inclusion of a release provision in this
Amendment shall not give rise to any inference that, but for such release, any
Claim otherwise would exist.
Except as specifically provided herein, all terms and conditions of the
Loan Agreement remain in full force and effect, without waiver or modification.
All terms defined in the Loan Agreement shall have the same meaning when used in
this Amendment. This Amendment and its attachments and the Loan Agreement shall
be read together, as one document.
Borrower hereby remakes all representations and warranties contained in
the Loan Agreement and reaffirms all covenants set forth therein. Borrower
further certifies that as of the date of this Amendment, there exists no Event
of Default as defined in the Loan Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
XXXXX FARGO BANK
Noble Roman's, Inc. NATIONAL ASSOCIATION
------------------
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxx
--------------- ---------------
Title: Chairman & CEO Title: Vice President
-------------- --------------
Pizzaco, Inc.
By: /s/ Xxxx Xxxxxx
---------------
Title: Chairman & CEO
--------------
N.R. Realty, Inc.
By: /s/ Xxxx Xxxxxx
---------------
Title: Chairman & CEO
--------------
Dated: October 21, 2011
----------------
-3-
