Change in Terms Agreement between Schlotzskys Inc and American Bank of Commerce (Loan No. 403409)

Summary

Schlotzskys Inc and American Bank of Commerce have agreed to extend the maturity date of a $150,000 loan originally issued on March 27, 2003. The new maturity date is December 25, 2003, at which time all outstanding principal and accrued interest must be paid in full. All other terms and conditions of the original loan and related security documents remain unchanged. The agreement does not release any parties from liability unless expressly stated in writing by the lender.

EX-10.38 4 d13989exv10w38.txt CHANGE IN TERMS AGREEMENT EXHIBIT 10.38 CHANGE IN TERMS AGREEMENT BORROWER(S): LENDER: Schlotzskys Inc American Bank of Commerce 203 Colorado Street 522 Congress Ave, Suite 100 Austin TX 78701 Austin TX 78701 AGREEMENT DATE: 10/25/03 LOAN NUMBER: 403409 PRINCIPAL BALANCE: $150,000.00 DESCRIPTION OF EXISTING INDEBTEDNESS: A promissory note originally dated: 03/27/03 in the original amount of: $150,000.00 from Borrower to Lender. DESCRIPTION OF COLLATERAL AS DESCRIBED IN RELATED SECURITY DOCUMENTS: AS STATED THEREIN DESCRIPTION OF CHANGE IN TERMS: THE MATURITY DATE IS HEREBY EXTENDED TO DECEMBER 25, 2003 WHEN ALL OUTSTANDING PRINCIPAL & ACCRUED INTEREST WILL BE DUE & PAYABLE IN FULL. ALL OTHER TERMS & CONDITIONS WILL REMAIN THE SAME. CONTINUING VALIDITY: CONTINUING VALIDITY: EXCEPT AS EXPRESSLY CHANGED BY THIS AGREEMENT, THE TERMS OF THE ORIGINAL OBLIGATION OR OBLIGATIONS, INCLUDING ALL AGREEMENTS EVIDENCED OR SECURING THE OBLIGATION(S), REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT. CONSENT BY LENDER TO THIS AGREEMENT DOES NOT WAIVE LENDER'S RIGHT TO STRICT PERFORMANCE OF THE OBLIGATION(S) AS CHANGED, NOR OBLIGATE LENDER TO MAKE ANY FUTURE CHANGE IN TERMS. NOTHING IN THIS AGREMENT WILL CONSITUTE A SATISFACTION OF THE OBLIGATION(S). IT IS THE INTENTION OF THE LENDER TO RETAIN AS LIABLE PARTIES ALL MAKERS AND ENDORSERS OF THE ORIGINAL OBLIGATION(S), INCLUDING ACCOMMODATION PARTIES, UNLESS A PARTY IS EXPRESSLY RELEASED BY LENDER IN WRITING. ANY MAKER OR ENDORSER, INCLUDING ACCOMMODATION MAKERS, WILL NOT BE RELEASED BY VIRTURE OF THIS AGREEMENT. IF ANY PERSON WHO SIGNED THE ORIGINAL OBLIGATION DOES NOT SIGN THIS AGREEMENT BELOW, THEN ALL PERSONS SIGNING BELOW ACKNOWLEDGE THAT THIS AGREEMENT IS GIVEN CONDITIONALLY, BASED ON THE REPRESENTATION TO LENDER THAT THE NON-SIGNING PARTY CONSENTS TO THE CHANGES AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE WILL NOT BE RELEASED BY IT. THIS WAIVER APPLIES NOT ONLY TO ANY INITIAL EXTENSION, MODIFICATION OR RELEASE, BUT ALSO TO ALL SUCH SUBSEQUENT ACTIONS. Schlotzskys Inc /S/ JEFFREY J. WOOLEY - -------------------------------------------- JEFFREY J WOOLEY, SENIOR VICE PRESIDENT