Exhibit 10.7
Loan No. 93-0903175
SECOND AMENDMENT TO LOAN AGREEMENT
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THIS SECOND AMENDMENT TO LOAN AGREEMENT ("Amendment") is entered into on
November 9, 2010 but effective as of October 1, 2010, by and among 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, with such determination to be made by Lender in its Sole
Discretion, "Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender").
R E C I T A L S
A. Borrower and Lender have entered into that certain Loan Agreement dated
as of August 25, 2005 as amended by First Amendment to Loan Agreement dated as
of February 4, 2008 (as so amended and as amended from time to time, the "Loan
Agreement").
B. The parties desire to amend the Loan Agreement to provide for (among
other things) the deferral of the principal payments payable on October 1, 2010,
November 1, 2010 and December 1, 2010, subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender hereby
covenant and agree as follows:
1. Definitions. Capitalized terms used herein and not defined herein shall
have the meanings provided therefor in the Loan Agreement.
2. Amendments to Loan Agreement. Effective as of the Second Amendment
Closing Date:
(a) Section 1.01 of the Loan Agreement is hereby amended by inserting
the following new definitions in their proper alphabetical order:
"Deferred Principal" means the principal payments that, but for the
provisions of the Second Amendment, would have been due and payable on
October 1, 2010, November 1, 2010 and December 1, 2010, in aggregate
principal amount of $375,000.00.
"Second Amendment" means the Second Amendment to Loan Agreement dated
November 9, 2010 but effective as of October 1, 2010 between Borrower
and Lender.
"Second Amendment Closing Date" means the first date that all the
conditions precedent set forth in the Second Amendment are satisfied.
(b) The following definitions in Section 1.01 of the Loan Agreement
are hereby amended and restated in their entirety as follows:
"Applicable Rate" means an interest rate per annum equal to (a) 3.75%
through and including October 31, 2010 and (b) 4.25% from and after
November 1, 2010.
(c) The following new paragraph (d) is hereby added at the end of
Section 2.02 of the Loan Agreement:
(d) Prepayment of Deferred Principal. Notwithstanding anything to
the contrary contained in Section 2.02(c), it shall be a condition to
the prepayment of any Deferred Principal that Borrower shall establish
to Lender's satisfaction prior to such prepayment that, immediately
following such prepayment, Borrower shall have cash on hand of not
less than $250,000. No Prepayment Charge shall be required to be paid
in connection with any permitted prepayment of Deferred Principal.
(d) Section 2.03(b) is hereby amended by inserting at the end of the
first sentence thereof the following clause:
; provided, however, that no Required Monthly Amortization Payment
shall be due and payable on October 1, 2010, November 1, 2010 or
December 1, 2010.
(e) The following new paragraph (d) is hereby added at the end of
Section 2.03 of the Loan Agreement:
(d) Payments of Deferred Principal. In addition to any other
payments due under this Agreement, on the Payment Date occurring on
April 1, 2011 and on each Payment Date thereafter until the Deferred
Principal is paid in full, Borrower shall pay to Lender an amount
equal to $75,000.00 to be applied to reduction of the Deferred
Principal.
(f) The following sentence is hereby added at the end of Section 2.05
of the Loan Agreement:
In addition to the fees provided for above, and in consideration of
Lender's execution and delivery of the Second Amendment, Borrower
shall pay to Lender on July 1, 2011, or such earlier date on which the
Loan shall be due or declared due, an additional fee in the amount of
$22,500.00. Such fee is earned as of the Second Amendment Closing Date
and, when paid, shall not be refundable for any reason whatsoever.
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3. Conditions Precedent to Effectiveness of this Amendment. The
effectiveness of this Amendment is subject to satisfaction of the following
conditions precedent:
(a) Lender's receipt of the following:
(i) counterparts of this Amendment fully executed by an
authorized officer or Borrower; and
(ii) such other assurances, certificates, documents,
consents or opinions as Lender reasonably may require.
(b) Unless waived by Lender, Borrower shall have paid all
Attorney Costs of Lender to the extent invoiced prior to or on the
Second Amendment Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final
settling of accounts between Borrower and Lender).
(c) The representations and warranties of Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which
are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as
of the Second Amendment Closing Date, except to the extent that such
representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date.
(d) No Default or Event of Default shall exist (other than
failure to pay the Deferred Principal on October 1, 2010 or November
1, 2010).
4. Ratification. The Loan Agreement, as amended by this Amendment and the
other Loan Documents are each hereby ratified and remain in full force and
effect. Nothing contained herein shall affect the priority of the lien of any
Loan Documents.
5. 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,
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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 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.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all such counterparts together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
NOBLE ROMAN'S INC.,
an Indiana corporation
By: /s/ Paul W. Mobley
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Paul W. Mobley,
Chairman of the Board and Chief
Executive Officer
PIZZACO, INC., an Indiana corporation
By: /s/ Paul W. Mobley
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Paul W. Mobley,
Chairman of the Board and Chief
Executive Officer
N.R. REALTY, INC., an Indiana corporation
By: /s/ Paul W. Mobley
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Paul W. Mobley,
Chairman of the Board and Chief
Executive Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Todd J. Alcantara
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Name: Todd J. Alcantara
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Title: Vice President
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By:
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Name:
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