EXHIBIT 10.10
SECOND AMENDMENT TO LOAN AGREEMENT
This SECOND AMENDMENT TO LOAN AGREEMENT (the "Amendment"),
dated as of November 30, 1995, is by and among PIZZA INN, INC., a
Missouri corporation ("Borrower"), FIRST INTERSTATE BANK OF TEXAS,
N.A. ("FIBOT"), and FIRST INTERSTATE BANK OF TEXAS, N.A., as agent
for itself and any other Banks (in such capacity, together with its
successors in such capacity, the "Agent").
R E C I T A L S:
A. The Borrower, FIBOT, The Provident Bank ("Provident") and
the Agent have entered into that certain Loan Agreement dated as of
December 1, 1994, as amended by a certain First Amendment to Loan
Agreement dated as of April 28, 1995 (such Loan Agreement, as the
same has previously been amended, as the same is hereby amended and
as the same may hereafter be amended from time to time, being
herein referred to as the "Loan Agreement").
B. On or prior to the Effective Date (defined below), FIBOT
proposes to acquire from Provident all of Provident's rights and
obligations under the Loan Agreement and the other Loan Documents
(including without limitation, its Commitments and Advances) so
that FIBOT will become the sole Bank thereunder.
C. The Borrower has requested that FIBOT extend the
Termination Date of the Revolving Credit Commitments, reduce the
interest rate applicable to the Advances, revise the amortization
schedule applicable to the Term Loan and revise the financial
covenants contained in the Loan Agreement, which FIBOT is willing
to do upon the terms and conditions set forth herein.
D. Pursuant to the Loan Agreement, Xxxxx Realty, Inc.,
R-Check, Inc. and Pizza Inn of Delaware, Inc. (collectively the
"Guarantors") executed that certain Guaranty Agreement dated as of
December 1, 1994 which guaranteed to the Agent and the Banks the
payment and performance of the Obligations.
E. The Borrower, FIBOT and the Agent now desire to amend the
Loan Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledge, 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 Agreement as amended hereby.
ARTICLE II
Amendments
Section 2.1 Revised Definitions. Effective as of the Effective Date,
Section 1.1 of the Loan Agreement is hereby amended to revise the
following definitions therein which shall read as follows:
"Applicable Rate" means: (a) during the period that an
Advance is a Prime Rate Advance, the Prime Rate; and (b)
during the period that an Advance is a Eurodollar Advance, the
Adjusted Eurodollar Rate plus the Eurodollar Rate Margin.
"Capital Expenditures" means expenditures of Borrower and
the Subsidiaries in respect of the purchase or other
acquisition of fixed or capital assets, less the amount of
sale and leaseback transactions not exceeding an aggregate of
$600,000 in any twelve (12) month period.
"Eurodollar Rate Margin" 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 Percentage
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 3.5 to 1.0 2.00%
3.5 to 1.0 or greater 2.25%
The Borrower shall give written notice to the Agent of any
changes in the Funded Debt Ratio as of the end of any fiscal
month which results in a change to the Eurodollar Rate Margin
concurrently with its delivery of the items required under
Section 9.1(c) hereof, and any change to the Eurodollar Rate
Margin shall be effective with respect to any Interest Period
commencing after the Agent has received such information.
"Fixed Charge Coverage Ratio" means, at any time, the
quotient determined by dividing (a) the sum of Consolidated
Free Cash Flow plus interest expenses of the Borrower and the
Subsidiaries for 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 during the next succeeding twelve (12)
calendar months plus (ii) interest expenses 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 of the Borrower
and the Subsidiaries for borrowed money (including the current
portion thereof and all outstanding Advances) plus the Capital
Lease Obligations by (b) the Consolidated Free Cash Flow for
the preceding twelve (12) calendar months.
"Monthly Payment Date" means the first Business Day of
each calendar month of each year.
"Quarterly Payment Date" means the first day of each
March, June, September and December of each year.
"Termination Date" means 10:00 A.M. Dallas, Texas time on
November 30, 1997, or such earlier date and time on which the
Revolving Credit Commitments terminate 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 2.2 New Definition. Effective as of the Effective Date,
Section 1.1 of the Loan Agreement is hereby amended to add the
following definition which shall read as follows:
"Consolidated Free Cash Flow" means, for any period,
the aggregate net income (or net loss) of the Borrower
and the Subsidiaries on a consolidated basis calculated
before federal income taxes, depreciation and
amortization but after deducting Capital Expenditures,
any Federal income taxes paid or payable in cash by the
Borrower and any extraordinary gains of the Borrower
during the period in question, less the amount of any
purchases by Borrower of its common stock in excess of
$800,000 during the period in question (but in any event
subsequent to July 1, 1995); provided, however, that for
purposes of determining the Eurodollar Rate Margin only,
the amount of any extraordinary losses during the period
in question shall be added thereto.
Section 2.3 Deleted Definition. Effective as of the Effective Date,
Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Prime Rate Margin" in its entirety.
Section 2.4 Amendment to Repayment of Term Loan. Effective as of the
Effective Date, subsections (b) and (c) of Section 2.3 of the Loan
Agreement are hereby amended in their entirety to read as follows:
(b) the next eleven principal installments shall be
in the amount of $500,000 each; and (c) the final
principal installment shall be in the amount of all
outstanding principal of the Term Loan.
Effective as of Effective Date, subsection (d) of Section 2.3 of
the Loan Agreement is hereby deleted in its entirety.
Section 2.5 Amendment to Interest on Term Loan. Effective as of the
Effective Date, the third sentence of Section 2.4 of the Loan
Agreement is hereby amended in its entirety to read as follows:
Accrued and unpaid interest on the Term Loan shall be due
and payable as follows: (i) in the case of Prime Rate
Advances, on each Monthly Payment Date; (ii) in the case
of all Eurodollar Advances, on the last day of each
Interest Period applicable thereto, and with respect to
any Interest Period exceeding three (3) months, on the
last day of the third month after the commencement of
such Interest Period; and (iii) on the Maturity Date.
Section 2.6 Amendment to Interest on Revolving Credit Loan.
Effective as of the Effective Date, the third sentence of
Section 3.4 of the Loan Agreement shall be amended to read in its
entirety as follows:
Accrued and unpaid interest on the Revolving Credit
Advances shall be due and payable as follows: (i) in the
case of all Prime Rate Advances, on each Monthly Payment
Date; (ii) in the case of all Eurodollar Advances, on the
last day of each Interest Period applicable thereto, and
with respect to any Interest Period exceeding three (3)
months, on the last day of the third month after the
commencement of such Interest Period; and (iii) on the
Termination Date.
Section 2.7 Amendment to Commitment Fee. Effective as of the
Effective Date, Section 3.7 of the Loan Agreement is hereby amended
in its entirety to read as follows:
Section 3.7 Commitment Fee. The Borrower agrees to
pay to the Agent for the account of the Banks a
Commitment Fee (herein so called) on the daily average
unused amount of such Bank's Revolving Credit Commitment,
for the period from and including the date of this
Agreement to and including the Termination Date, at the
rate of one-half of one percent (1/2%) per annum based on
a 360 day year and the actual number of days elapsed;
provided, however, that if at any time from and after
December 1, 1995 the Funded Debt Ratio is less than 3.0
to 1.0, such rate shall be reduced to three-eighths of
one percent (3/8%) per annum. The accrued Commitment Fee
shall be payable in arrears on each Quarterly Payment
Date and on the Termination Date. For the purpose of
calculating the Commitment Fee, the Revolving Credit
Commitments shall be deemed utilized to the extent of all
outstanding Revolving Credit Advances and Letter of
Credit Liabilities.
Section 2.8 Amendment to Mandatory Prepayment of Term Loan.
Effective as of the Effective Date, subsection (a) of Section 4.3
of the Loan Agreement is deleted in its entirety.
Section 2.9 Amendment to Debt. Effective as of the Effective Date,
Section 10.1 of the Loan Agreement is hereby amended to read in its
entirety as follows:
Section 10.1 Debt. The Borrower will not incur,
create, assume, or permit to exist, and will not permit any
Subsidiary to incur, create, assume, or permit to exist, any
Debt, except:
(a) Debt to the Banks pursuant to the Loan Documents;
(b) Existing Debt described on Schedule 3 hereto and any
renewal or extension thereof which does not increase the
outstanding amount thereof; and
(c) Debt of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or another Subsidiary; and
(d) Capital Lease Obligations and purchase money Debt
for purchases of equipment in the ordinary course of business
not exceeding $1,200,000 in the aggregate at any time.
Subject to obtaining the prior written approval of the Required
Banks, which approval shall not be unreasonably withheld, the
Borrower may incur purchase money Debt relating to the Borrower's
reacquisition of area development rights.
Section 2.10 Amendment to Restricted Payments. Effective as of the
Effective Date, Section 10.4 of the Loan Agreement is hereby
amended in its entirety to read as follows:
10.4 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) the purchase of common stock of the Borrower
in open market transactions, so long as no Default or
Event of Default exists at the time of such purchase nor
would result after giving effect thereto; (b) dividend
payments on any class of capital stock payable solely in
shares of capital stock of the Borrower; (c) payments of
dividends from any Subsidiary to the Borrower; (d)
payments in lieu of taxes to the Borrower or a Subsidiary
pursuant to a tax sharing agreement; (e) any exchange of
stock not involving any cash consideration pursuant to a
stock option plan for employees or directors of the
Borrower; and (f) any other redemption, purchase,
retirement or the acquisition of the Borrower's capital
stock upon obtaining the prior written approval of the
Required Banks.
Section 2.11 Amendment to Sale and Leaseback. Effective as of the
Effective Date, Section 10.9 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 10.9 Sale and Leaseback. The Borrower will not
enter into, and will not permit any Subsidiary to enter into,
any arrangement with any Person pursuant to which it leases
from such Person real or personal property that has been or is
to be sold or transferred, directly or indirectly, by it to
such Person, except sale and leaseback transactions involving
expenditures not to exceed an aggregate of $600,000 in any
twelve (12) month period.
Section 2.12 Amendment to Current Ratio. Effective as of the
Effective Date, Section 11.1 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 11.1 Current Ratio. The Borrower will
maintain a Current Ratio of not less than the following
amounts as of the following dates:
Amount Dates
1.15 12/31/95
1.15 1/31/96
1.15 2/29/96
1.20 3/31/96
1.20 4/30/96
1.20 5/31/96
1.25 6/30/96 and as of the last
day of each fiscal
month thereafter.
Section 2.13 Amendment to Consolidated Net Worth. Effective as of the
Effective Date, Section 11.2 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 11.2. Consolidated Net Worth. The Borrower will
at all times maintain Consolidated Net Worth in an amount not
less than the sum of (i) $7,000,000 as of December 24, 1995
and (ii) fifty percent (50%) of the cumulative total of all
Consolidated Net Income earned in each fiscal quarter
thereafter (without deduction for any net loss incurred in any
fiscal quarter).
Section 2.14 Amendment to Leverage Ratio. Effective as of the
Effective Date, Section 11.3 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 11.3 Leverage Ratio. The Borrower will at all
times maintain a Leverage Ratio of not greater than 3.0.
Section 2.15 Deletion of Capital Expenditures. Effective as of the
Effective Date, Section 11.4 of the Loan Agreement is hereby
deleted in its entirety.
Section 2.16 Deletion of Interest Coverage Ratio. Effective as of the
Effective Date, Section 11.5 of the Loan Agreement is hereby
deleted in its entirety.
Section 2.17 Amendment to Funded Debt Ratio. Effective as of the
Effective Date, Section 11.6 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 11.6 Funded Debt Ratio. The Borrower will at
all times maintain a Funded Debt Ratio of not greater than
3.50.
Section 2.18 Amendment to Fixed Charge Coverage Ratio. Effective as
of the Effective Date, Section 11.7 of the Loan Agreement is hereby
amended in its entirety to read as follows:
Section 11.7 Fixed Charge Coverage Ratio. The
Borrower will at all times maintain a Fixed Charge
Coverage Ratio of not less than 1.50 to 1.0.
Section 2.19 Amendment to Certain Exhibits. Effective as of the
Effective Date, Exhibits "A" and "B" of the Loan Agreement are
hereby amended in their entireties to read as provided in Annexes
I and II, respectively, attached hereto.
ARTICLE III
Consents
Section 3.1 Consent to Application of $285,000 Prepayment to
Scheduled Amortization. The Agent hereby acknowledges receipt of
a $285,000 principal prepayment from the Borrower on November 10,
1995 (the "$285,000 Payment"). The Agent and FIBOT hereby agree
that the $285,000 Payment shall not be deemed a voluntary
prepayment under Section 4.2 of the Loan Agreement but shall be
credited against the Borrower's obligation under Section 2.3 of the
Loan Agreement with respect to the scheduled principal payment due
on November 30, 1995.
Section 3.2 Consent Regarding Pizza Inn Servicos De Gestao De
Franchising, Lda. The Agent hereby consents to Borrower's and
Pizza Inn of Delaware Inc.'s inability to perfect Agent's security
interest in the quotas in Pizza Inn Servicos De Gestao De
Franchising, Lda. (the "Madeira Sub"), by providing evidence of the
perfection of the Lien on such quotas, provided that (i) Borrower
agrees not to grant and not to cause Pizza Inn of Delaware, Inc. to
xxxxx x Xxxx upon the Madeira Sub quotas to any other Person; and
(ii) Borrower agrees not to enter and not to cause Pizza Inn of
Delaware, Inc. to enter into a negative pledge agreement with
respect to the Madeira Sub quotas or any other agreement
prohibiting the creation or perfection of any Lien upon the Madeira
Sub quotas.
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 December 4, 1995, in which event this Amendment will
become effective as of December 1, 1995 (the "Effective Date"):
(a) The Agent shall have received all of the following,
each dated (unless otherwise indicated) the Effective Date, in
form and substance satisfactory to the Agent:
(1) Resolutions. Resolutions of the Board of
Directors of the Borrower certified by its Secretary or
an Assistant Secretary which authorize the execution,
delivery, and performance by the Borrower of this
Amendment and the other Loan Documents to which the
Borrower 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 certifying the names of the
officers of the Borrower authorized to sign this
Amendment and each of the other Loan Documents to which
the Borrower is or is to be a party hereunder (including
the certificates contemplated herein), together with
specimen signatures of such officers;
(3) Articles of Incorporation. The articles of
incorporation of the Borrower certified by the
appropriate government official of the state of
incorporation of the Borrower within ten (10) days prior
to the Closing Date;
(4) Bylaws. The bylaws of the Borrower certified
by the Secretary or an Assistant Secretary of the
Borrower;
(5) Governmental Certificates. Certificates of the
appropriate government officials of the state of
incorporation of the Borrower as to the existence and
good standing of the Borrower, each dated within ten (10)
days prior to the Effective Date;
(b) Borrower shall have paid to FIBOT, in consideration
of this Amendment, an amendment fee in the amount of $5,500.
(c) Borrower shall have paid to FIBOT an additional fee
in the amount of $11,000 in consideration of the acquisition
by FIBOT from Provident of all of Provident's rights and
obligations under the Loan Agreement and the other Loan
Documents.
(d) FIBOT shall have consummated the acquisition from
Provident, pursuant to Section 14.8 of the Loan Agreement, of
all of Provident's rights and obligations under the Loan
Agreement and the other Loan Documents.
(e) FIBOT shall have received new Notes, in
substantially the form of Annex I and Annex II attached
hereto, executed by the Borrower (in exchange for and
restatement of those certain Notes dated December 2, 1994,
executed by Borrower and payable to the order of Provident and
FIBOT) and in the respective amounts of the Revolving Credit
Commitment and the unpaid principal balance of the Term Loan.
(f) 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, and Borrower shall have delivered to the Agent any
required revisions to the Schedules to the Loan Agreement;
(g) 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.
(h) 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 Agent and its legal
counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
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 and except as
expressly modified and superseded by this Amendment, the terms and
provisions of the Loan Agreement are ratified and confirmed and
shall continue in full force and effect. The Borrower, FIBOT and
the Agent agree that the Loan Agreement as amended hereby shall
continue to be legal, valid, binding and enforceable in accordance
with its terms.
Section 5.2 Representations and Warranties. The Borrower hereby
represents and warrants to FIBOT and the Agent 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 Loan Agreement, 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 Loan Agreement 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 Agent or FIBOT or any closing shall affect the
representations and warranties or the right of the Agent or FIBOT
to rely upon them.
Section 6.2 Reference to Agreement. Each of the Loan Documents,
including the Loan 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 Loan
Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Loan Agreement shall mean
a reference to the Loan Agreement as amended hereby.
Section 6.3 Expenses of Banks. As provided in the Loan Agreement,
the Borrower agrees to pay on demand all costs and expenses
incurred by the Agent and FIBOT 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 Agent's legal counsel, and all
costs and expenses incurred by the Agent and FIBOT 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 Agent's legal counsel.
Section 6.4 Severability. 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 Agent, the Banks 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
Banks.
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 Banks 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 AGREEMENTS AMONG THE PARTIES HERETO.
Section 6.11 BINDING ARBITRATION. THE PARTIES HERETO REAFFIRM THEIR
AGREEMENT TO BE BOUND BY THE TERMS AND PROVISIONS OF THE FIRST
INTERSTATE BANK OF TEXAS, N.A. ARBITRATION PROGRAM (DATED 9/1/92)
WHICH WAS ATTACHED AS EXHIBIT "K" TO THE LOAN AGREEMENT AND IS
INCORPORATED BY REFERENCE HEREIN, THE TERMS OF WHICH ARE
ACKNOWLEDGED AS RECEIVED BY THE PARTIES HERETO, AND PURSUANT TO
WHICH ANY AND ALL DISPUTES RELATING TO OR ARISING FROM THIS
AMENDMENT SHALL BE RESOLVED BY MANDATORY BINDING ARBITRATION UPON
THE REQUEST OF ANY PARTY.
Executed as of the date first written above.
Borrower:
PIZZA INN, INC.
By: /s/ C. Xxxxxxx Xxxxxx
Name: C. Xxxxxxx Xxxxxx
Title: President
Agent:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
Bank:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: 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.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
R-CHECK, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
PIZZA INN OF DELAWARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
AMENDED AND RESTATED TERM NOTE
$9,910,252.27 Dallas, Texas December 1, 1995
FOR VALUE RECEIVED, the undersigned, PIZZA INN, INC., a Missouri
corporation (the "Borrower"), hereby promises to pay to the order
of FIRST INTERSTATE BANK, N..A. (the "Bank"), at the Agent's
offices located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000 for the
account of the Applicable Lending Office of the Bank, on or before
November 30, 1998, in lawful money of the United States of America
and in immediately available funds, the principal sum of Nine
Million Nine Hundred Ten Thousand Two Hundred Fifty Two and 27/100
Dollars ($9,910,252.27), and to pay interest on such principal
amount, at such office, in like money and funds, for the period
commencing on the date hereof until the loan evidenced hereby
shall be paid in full, at the rates per annum and on the dates
provided in the Loan Agreement.
The outstanding principal balance hereof shall be due and
payable in twelve (12) consecutive quarterly installments as
follows: (a) the first eleven principal installments shall be in
the amount of $500,000 each, the first such installment to be due
and payable on March 1, 1995, with like successive installments of
principal to be due and payable on each Quarterly Payment Date
thereafter until and including September 1, 1998; and (b) a final
installment in the amount of all outstanding principal, plus
accrued and unpaid interest, shall be due and payable on November
30, 1998.
The Borrower hereby authorizes the Bank to endorse on the
Schedule annexed to this Note the amount and Type of Term Loan
Advances made to the Borrower by the Bank and all Continuations,
Conversions and payments of principal in respect of such Advances,
which endorsements 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 has been executed and delivered by Borrower pursuant
to the terms of that certain Loan Agreement dated as of December
1, 1994, among the Borrower, the Bank, certain other banks which
are parties thereto and First Interstate Bank of Texas, N.A., as
Agent for the Bank and such other banks, as amended by that
certain First Amendment to Loan Agreement dated as of April 28,
1995, and as further amended by that certain Second Amendment to
Loan Agreement dated as of November 30, 1995 (such Loan
Agreement, as the same has been and may be amended, modified or
supplemented from time to time, being referred to herein as the
"Loan Agreement"), is one of the Term Notes described therein, and
evidences Term Loan Advances made thereunder. The Loan Agreement,
among other things, contains provisions for acceleration for 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 have the
respective meanings assigned to them in the Loan Agreement.
This Note is given as an amendment and restatement of, but not
in extinguishment of, the indebtedness evidenced by that certain
Term Note dated December 2, 1994, executed by Borrower and payable
to the order of the Bank in the principal amount of $7,150,000.00
and that certain Term Note dated December 2, 1994, executed by
Borrower, payable to the order of The Provident Bank and assigned
to the Bank in the principal amount of $7,150,000.00.
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.
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/ C. Xxxxxxx Xxxxxx
C. Xxxxxxx Xxxxxx
Title: President
Schedule
Amount of
Date Made, Principal Unpaid
Continued, Continued, Principal
Converted, Type of Amount of Converted, Balance
or Paid Advance Advance or Paid of Note
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$1,000,000 Dallas, Texas December 1, 1995
FOR VALUE RECEIVED, the undersigned, PIZZA INN, INC., a
Missouri corporation (the "Borrower"), hereby promises to pay to
the order of FIRST INTERSTATE BANK, N.A. (the "Bank"), at the
Agent's office located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000
for the account of the Applicable Lending Office of the Bank, on or
before November 30, 1997, in lawful money of the United States of
America and in immediately available funds, the principal sum of
One Million and No/100 Dollars ($1,000,000.00) or such lesser
amount as shall equal the aggregate unpaid principal amount of the
Revolving Credit Advances made by the Bank to the Borrower under
Article III of the Loan Agreement referred to below, on the dates
and in the principal amounts provided in the Loan Agreement, 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.
The Borrower hereby authorizes the Bank to endorse on the
Schedule annexed to this Note the amount and Type of Revolving
Credit Advances made to the Borrower by the Bank and all
Continuations, Conversions, and payments of principal in respect of
such Advances, which endorsements 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 has been executed and delivered by Borrower pursuant
to the terms of that certain Loan Agreement dated as of December 1,
1994, among the Borrower, the Bank, certain other banks which are
parties thereto and First Interstate Bank of Texas, N.A., as Agent
for the Bank and such other banks, as amended by that certain First
Amendment to Loan Agreement dated as of April 28, 1995, and as
further amended by that certain Second Amendment to Loan Agreement
dated as of November 30, 1995 (such Loan Agreement, as the same has
been and may be amended, modified, or supplemented from time to
time, being referred to herein as the "Loan Agreement"), is one of
the Revolving Credit Notes referred to therein, and evidences
Revolving Credit Advances made by the Bank thereunder. 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 have the respective
meanings assigned to them in the Loan Agreement.
This Note is given in modification and renewal of, but not in
extinguishment of, the indebtedness evidenced by that certain
Revolving Credit Note dated December 2, 1994, executed by Borrower
and payable to the order of the Bank in the principal amount of
$500,000.00 and that certain Revolving Credit Note dated December
2, 1994 executed by Borrower, payable to the order of The Provident
Bank and assigned to the Bank in the principal amount of
$500,000.00.
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.
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/ C. Xxxxxxx Xxxxxx
Name: C. Xxxxxxx Xxxxxx
Title: President
Schedule
Amount of
Date Made, Principal Unpaid
Continued, Continued, Principal
Converted, Type of Amount of Converted Balance
or Paid Advance Advance or Paid of Note
