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EX 10.31
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as of
March 13, 2002 is among SCHLOTZSKY'S, INC., a Texas corporation ("BORROWER"),
each of the Lenders party to the Agreement referred to below, and WELLS FARGO
BANK TEXAS, NATIONAL ASSOCIATION, a national banking association (successor by
consolidation to Wells Fargo Bank (Texas), National Association), as Agent for
itself and the other Lenders (in such capacity, together with its successors in
such capacity the "AGENT") and as the Issuing Bank.
RECITALS:
A. Borrower, Agent, Lenders and Issuing Bank have previously entered into
that certain Credit Agreement dated as of December 7, 1999, as amended by (a)
that certain First Amendment to Credit Agreement dated as of December 31, 1999,
(b) that certain Second Amendment to Credit Agreement dated as of May 1, 2000,
(c) that certain Third Amendment to Credit Agreement dated as of September 30,
2000, (d) that certain Fourth Amendment to Credit Agreement dated as of April
13, 2001, and (e) that certain Fifth Amendment to Credit Agreement dated as of
December 31, 2001 (the Credit Agreement as so amended is hereinafter referred to
as the "AGREEMENT").
B. Borrower, Agent, Required Lenders and Issuing Bank now desire to amend
the Agreement (a) to amend Section 10.1 (Consolidated Working Capital) of the
Agreement; and (b) to make such other modifications, in each case, as
hereinafter more specifically provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. All capitalized terms not otherwise defined herein, shall
have the same meanings as in the Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
2.1 AMENDMENT TO SECTION 10.1. Effective as of December 31, 2001,
Section 10.1 of the Agreement is amended and restated to read in its entirety as
follows:
Section 10.1 CONSOLIDATED WORKING CAPITAL. As of the last day of any
Fiscal Quarter, the Borrower will maintain a Consolidated Working Capital
of not less than (a) $3,000,000 for the Fiscal Quarter ending December 31,
2001, and thereafter (b) $3,000,000 minus any payments made pursuant to
SECTION 5.3(c) of this Agreement subsequent to December 31, 2001.
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ARTICLE III
CONDITIONS PRECEDENT
3.1 CONDITIONS. The effectiveness of this Amendment is subject to the
satisfaction of the following conditions precedent:
(a) LOAN DOCUMENTS. Agent shall have received all of the following,
each dated (unless otherwise indicated) the date of this Amendment, in form
and substance satisfactory to the Agent:
(i) This Amendment executed by the Required Lenders and all
other parties hereto;
(b) AMENDMENT FEE. Agent shall have received from the Borrower an
amendment fee in the amount of $5,000 for the pro rata benefit of each
Lender who executes this Amendment on or before March 14, 2002.
(c) NO DEFAULT. No Default shall have occurred and be continuing.
(d) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties contained in Article VII of the Agreement, as amended hereby and
in the other Loan Documents shall be true and correct on and as of the date
of this Amendment with the same force and effect as if such representations
and warranties had been made on and as of such date, except to the extent
such representations and warranties speak to a specific date.
(e) ADDITIONAL DOCUMENTATION. The Agent shall have received such
additional approvals, opinions or documents as the Agent may request.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
4.1 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Agreement and except as 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,
Lenders, Issuing Bank and Agent agree that the Agreement as amended hereby and
the other Loan Documents shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms.
4.2 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
to the Lenders, Agent and Issuing 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 Borrower and will not violate the articles of
incorporation or bylaws of Borrower, (ii) the representations and warranties
contained in the Agreement, as amended hereby, and any other Loan Document are
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true and correct on and as of the date hereof as though made on and as of the
date hereof, except to the extent such representations and warranties speak to a
specific date, (iii) no Default has occurred and is continuing, and (iv)
Borrower is in full compliance with all covenants and agreements contained in
the Agreement as amended hereby.
ARTICLE V
MISCELLANEOUS
5.1 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 Lenders, Agent or Issuing Bank or any closing shall affect
the representations and warranties or the right of the Lenders, Agent or Issuing
Bank to rely upon them.
5.2 REFERENCE TO AGREEMENT. Each of the Loan Documents, 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.
5.3 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.
5.4 APPLICABLE LAW. This Amendment and all other Loan Documents executed
pursuant hereto shall be deemed to have been made and to be performable in
Austin, Travis County, Texas and shall be governed by and construed in
accordance with the laws of the State of Texas.
5.5 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall inure
to the benefit of the Lenders, Agent, Issuing Bank and Borrower and their
respective successors and assigns, except Borrower may not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Lenders.
5.6 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. Signatures hereto transmitted by facsimile shall be effective as
originals.
5.7 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS
AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS
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OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BORROWER:
SCHLOTZSKY'S, INC.
By:
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Name:
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Title:
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Address for Notices:
203 Colorado St.
Austin, TX 78701
Fax No.: (512) 236-3650
Telephone No.: (512) 236-3600
Attention: Chief Financial Officer
SIGNATURE PAGE TO SIXTH AMENDMENT TO CREDIT AGREEMENT
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AGENT, ISSUING BANK AND LENDER:
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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Address for Notices:
111 Congress Avenue, Suite 300
Austin, TX 78701
Fax No.: (512) 344-7318
Telephone No.: (512) 344-7037
Attention: Richard Gan
SIGNATURE PAGE TO SIXTH AMENDMENT TO CREDIT AGREEMENT
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OTHER LENDERS:
THE FROST NATIONAL BANK
By:
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Name:
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Title:
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Address for Notices:
2728 North Harwood, Suite 100
Dallas, TX 75201
Fax No.: (214) 515-4955
Telephone No.: (214) 515-4907
Attention: Shannon Bettis
SIGNATURE PAGE TO SIXTH AMENDMENT TO CREDIT AGREEMENT
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TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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Address for Notices:
2100 McKinney Avenue, Suite 900
Dallas, TX 75201
Fax No.: (214) 932-6604
Telephone No.: (214) 932-6675
Attention: Tim Monter
SIGNATURE PAGE TO SIXTH AMENDMENT TO CREDIT AGREEMENT
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OBLIGATED PARTIES CONSENT
Each of the undersigned Obligated Parties (i) consent and agree to this
Amendment and all the other Loan Documents (whether previously in existence or
created in connection herewith); and (ii) agree that the Loan Documents to which
it is a party shall remain in full force and effect and shall continue to be the
legal, valid and binding obligation of such Obligated Party enforceable against
it in accordance with their respective terms.
OBLIGATED PARTIES:
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RAD ACQUISITION CORP.
SCHLOTZSKY'S REAL ESTATE, INC.
SCHLOTZSKY'S RESTAURANTS, INC.
DFW RESTAURANT TRANSFER CORP.
SGC CONSTRUCTION CORP. (fka Schlotzsky's
Equipment Corporation)
SREI TURNKEY DEVELOPMENT, L.L.C.
56TH & 6TH, INC.
SCHLOTZSKY'S BRANDS, INC.
By:
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Name:
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Title:
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SCHLOTZSKY'S BRANDS I, L.L.C.
By:
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Name:
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Title:
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SCHLOTZSKY'S BRAND PRODUCTS, L.P.
By: Schlotzsky's Brands, Inc., as
general partner
By:
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Name:
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Title:
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SIGNATURE PAGE TO SIXTH AMENDMENT TO CREDIT AGREEMENT