Exhibit 10.1
Loan No. ▇▇-▇▇▇▇▇▇▇
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("Amendment") is entered
into as of February 4, 2008, 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 ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION ("Lender").
R E C I T A L S
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A. Borrower and Lender have entered into that certain Loan
Agreement dated as of August 25, 2005 (as amended, the "Loan
Agreement").
B. The parties desire to amend the Loan Agreement to modify
certain provisions of the Loan Agreement to increase the amount of the
Loan and to extend the Maturity Date, all are 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
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:
"Additional Advance" has the meaning specified in Section 2(c)
of the First Amendment.
"Amendment Closing Date" means the first date that all the
conditions precedent set forth in the First Amendment are
satisfied or waived in accordance therewith.
"First Amendment" means the First Amendment to Loan Agreement
dated as of February 4, 2008 between Borrower and Lender.
(b) The following definitions in Section 1.01 of the
Loan Agreement shall be amended and restated in their entirety
as follows:
"Applicable Rate" means an interest rate per annum equal to
3.75%.
"Commitment" means Lender's obligation to make the Loan to
Borrower in the aggregate principal amount of TWELVE MILLION
AND NO/100THS DOLLARS ($12,000,000.00) consisting of the sum
of (a) $9,000,000 advanced by Lender to Borrower on the
Closing Date pursuant to Section 2.1(a) of the Loan Agreement
(the outstanding principal balance of which has been reduced
to $5,375,000 as of the date hereof) and (b) the sum of
$3,000,000 to be advanced by Lender to Borrower pursuant to
Section 2(c) of the First Amendment.
"Loan" means the loan in the maximum principal amount of
$12,000,000.00 consisting of (a) the advance made by the
Lender to Borrower in the amount of $9,000,000 on the Closing
Date (the outstanding principal balance of which has been
reduced to $5,375,000.00 as of the date of the First
Amendment) and (b) the Additional Advance.
"Maturity Date" means August 31, 2013.
"Note" means a promissory note made by Borrower in favor of
Lender evidencing the Loan substantially in the form of
Exhibit A, as amended by First Amendment to Note dated of even
date with the First Amendment.
(c) On the Amendment Closing Date Lender shall make
and advance of the Loan to NRI in the amount of $3,000,000.00
(the "Additional Advance").
(d) All of the Schedules to the Credit Agreement are
hereby replaced by the corresponding schedules attached
hereto.
3. Repurchase of NRI Stock. Pursuant to the request of
Borrower and notwithstanding the provisions of Sections 7.06 and 7.10 of
the Loan Agreement to the contrary, and provided no Event of Default has
occurred and is continuing, Lender hereby consents to the repurchase by
NRI of issued and outstanding shares of capital stock of NRI in such
amounts and on such terms as are approved by NRI's board of directors,
provided, however, that the aggregate purchase price of all such
repurchased shares shall not exceed $3,000,000. Borrower shall promptly
give Lender notice of any such repurchase and the terms thereof.
4. 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, each of which
shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by
a Responsible Officer of the signing Loan Party, each dated the
Amendment Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Amendment
Closing Date) and each in form and substance satisfactory to
Lender and its legal counsel:
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(i) executed counterparts of this Amendment and the
First Amendment to Promissory Note of even date herewith;
(ii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as Lender may
require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Amendment
and the other Loan Documents to which such Loan Party is
a party;
(iii) such documents and certifications as Lender may
reasonably require to evidence that each Loan Party is
duly organized or formed, and that Borrower and each
other Loan Party executing any of the Loan Documents is
validly existing, in good standing and qualified to
engage in business in each jurisdiction where its
ownership, lease or operation of properties or the
conduct of its business requires such qualification;
(iv) a favorable opinion or opinions of counsel to the
Loan Parties, addressed to Lender, as to the matters set
forth in Exhibit C to the Loan Agreement and such other
matters concerning the Loan Parties and the Loan
Documents as Lender may reasonably request;
(v) a certificate signed by a Responsible Officer of
each Loan Party either (A) attaching copies of all
consents, licenses and approvals required in connection
with the execution, delivery and performance by, and the
validity against, such Loan Party of the Loan Documents
to which it is a party, which consents, licenses and
approvals shall be in full force and effect or (B)
stating that no such consents, licenses or approvals are
so required;
(vi) a certificate signed by a Responsible Officer of
Borrower certifying (A) that the conditions specified in
Sections 4(c) and (d) below have been satisfied, and (B)
that there has been no event or circumstance since
December 31, 2006 that has had or could be reasonably
expected to have, either individually or in the
aggregate, a Material Adverse Effect;
(vii) 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 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).
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(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 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, or
would result from the proposed Additional Advance.
5. Ratification. The Loan Agreement, as amended by this
Amendment, the Note, as amended by the First Amendment to Promissory
Note of even date herewith, and the other Loan Documents are each hereby
ratified and remain in full force and effect. Nothing contained herein
shall be deemed to be a novation of the Note or otherwise affect the
priority of the lien of any Loan Documents.
6. 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 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.
7. 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman of the Board and Chief Executive
Officer
PIZZACO, INC., an Indiana corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman of the Board and Chief Executive
Officer
N.R. REALTY, INC., an Indiana corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman of the Board and Chief Executive
Officer
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Managing Director
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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