THIRD AMENDMENT TO FINANCING AGREEMENT (this "Amendment”) is
entered into on this 30th day of
May 2008, to be effective as of the date hereof (the "Effective Date"), by and
between PIZZA INN, INC., a Missouri corporation with a principal place of
business at 3551 Plano Parkway, The Colony, Texas 75056 (herein the "Company"), and THE
CIT GROUP/COMMERCIAL SERVICES, INC., a New York corporation (the "Lender").
Company and the Lender have entered into that certain Financing Agreement,
of January 23, 2007 (as amended from time to time, the "Financing
Company has requested that Lender amend the Financing Agreement to permit
Company to repurchase Company stock in an amount up to $7,000,000.
to the terms and conditions of this Amendment, Company and Lender are
willing to amend the Financing Agreement as hereinafter set forth.
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties,
intending to be legally bound, agree as follows:
terms used in this Amendment are defined in the Financing Agreement, as amended
hereby, unless otherwise stated.
to Definition of Permitted Distributions. 'Effective as of the
Effective Date, Section 1.1 of the
Financing Agreement is hereby amended by deleting the reference to "$3,000,000"
in the definition of Permitted Distributions and replacing it with a reference
The effectiveness of this Amendment is subject to the satisfaction of the
following conditions precedent in a manner satisfactory to Lender, unless
specifically waived in writing by Lender:
shall have received each of the following, each in form and substance
satisfactory to Lender, in its sole discretion, and, where applicable, each duly
executed by each party thereto, other than Lender:
Amendment, duly executed by the Company; and
other documents Lender may request with respect to any matter relevant to this
Amendment or the transactions contemplated hereby.
representations and warranties contained herein and in the Financing Agreement
and the other documents executed in connection with the Financing
Agreement herein referred to as "Loan Documents"), as each is amended
hereby, shall be true and correct as of the date hereof, as if made on the date
(c) No Default or Event
of Default shall have occurred and be continuing, unless such Default or Event
of Default has been otherwise specifically waived in writing by Lender.
organizational 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 Lender.
Representations and Warranties
4.01 Ratifications. The terms and
provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Financing Agreement and the
other Loan Documents, and,-· except as expressly modified and superseded by this
Amendment, the terms and provisions of the Financing Agreement and the other
Loan Documents are ratified and confirmed and shall continue in full force and
effect. Company and Lender agree that the Financing Agreement and the other Loan
Documents, as amended hereby, shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms.
and Warranties. The Company
hereby represents and warrants to Lender that (a) 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
organizational action on the part of the Company and will not violate the
Articles of Incorporation or Bylaws of the Company; (b) the representations and
warranties contained in the Financing Agreement, as amended hereby, and each
other Loan Document are true and correct on and as of the date hereof and on and
as of the date of execution hereof as though made on and as of each such date;
(c) no Default or Event of Default under the Financing Agreement, as amended
hereby, has occurred and is continuing, unless such Default or Event of Default
has been specifically waived in writing by Lender; (d) the Company is in full
compliance with all covenants and agreements contained in the Financing
Agreement and the other Loan Documents, as
amended hereby; and (e) the Company has not amended its Articles of
Incorporation or its Bylaws
since the Closing Date.
of Representations and Warranties. All
representations and warranties made in the Financing Agreement, or any other
Loan Document, including, without limitation, any 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 Lender or any
closing shall affect the representations and warranties or the right of Lender
to rely upon them.
to Financing Agreement. Each of the
Financing Agreement and the other Loan Documents, and any and all other Loan
Documents, documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Financing
Agreement, as amended hereby, are hereby amended so that any reference in the
Financing Agreement and such other Loan Documents to the Financing Agreement
shall mean a reference to the Financing Agreement, as amended
of Lender. As provided in
the Financing Agreement, the Company agrees to pay on demand all
costs and expenses incurred by Lender in connection with the preparation,
negotiation, and execution of this Amendment and any and all amendments,
modifications, and supplements thereto, including, without limitation, the costs
and fees of Lender's legal counsel, and all costs and expenses incurred by
Lender in connection with the enforcement or preservation of any rights under
the Financing Agreement, as amended hereby, or any other Loan Documents,
including, without, limitation, the costs and fees of Lender's legal
5.04 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
and Assigns. This Amendment is
binding upon and shall inure to the benefit of Lender and Company and their
respective successors and assigns, except that Company may neither assign nor
transfer any of its rights or obligations hereunder without the prior written
consent of Lender.
5.06 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.
5.07 Effect of
consent or waiver, express or implied, by Lender to or for any breach of or
deviation from any covenant or condition by the Company shall be deemed a
consent to or waiver of any other breach of the same or any other covenant,
condition or duty.
5.08 Headings. The headings, captions, and
arrangements used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED
TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
FINANCING AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY,
REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE FINANCING AGREEMENT
AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION,
RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT
SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE COMPANY AND
5.11 Release. COMPANY HEREBY
ACKNOWLDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM
OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER. COMPANY HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER, ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, WHETHER FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, KNOWN IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH THE COMPANY MAY NOW OR HEREAFTER HAVE AGAINST LENDER, ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM
ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING,
TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST
LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
FINANCING AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION
OF THIS AMENDMENT.
WITNESS WHEREOF, this Amendment has been executed and is effective as of
first written above.
CIT GROUP/COMMERCIAL SERVICES,