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EXHIBIT 10(ab)
EIGHTH AMENDMENT TO REVOLVING
CREDIT AND TERM LOAN AGREEMENT
THIS EIGHTH AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
(hereinafter called this "Amendment") is entered into on November 3, 1998, to be
effective as of September 30, 1998, (the "Effective Date"), between PMB
ENTERPRISES WEST, INC., a New Mexico corporation (the "Company"), and ▇▇▇▇▇
FARGO BANK (TEXAS), NATIONAL ASSOCIATION (formerly First Interstate Bank of
Texas, N.A.) (the "Bank").
W I T N E S S E T H:
WHEREAS, the Company and the Bank entered into that certain Revolving
Credit and Term Loan Agreement dated February 16, 1994 (such Revolving Credit
and Term Loan Agreement and all amendments thereto and restatements thereof are
hereinafter collectively referred to as the "Agreement"); and
WHEREAS, the Company and the Bank entered into that certain First
Amendment to Revolving Credit and Term Loan Agreement dated February 9, 1995
(the "First Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Second
Amendment to Revolving Credit and Term Loan Agreement dated May 9, 1995 (the
"Second Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Third
Amendment to Revolving Credit and Term Loan Agreement dated September 29, 1995
(the "Third Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Fourth
Amendment to Revolving Credit and Term Loan Agreement dated February 16, 1996
(the "Fourth Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Fifth
Amendment to Revolving Credit and Term Loan Agreement dated July 9, 1996 (the
"Fifth Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Letter
Agreement dated December 16, 1996 (the "First Letter Agreement"); and
WHEREAS, the Company and the Bank entered into that certain Letter
Agreement dated February 11, 1997 (the "Second Letter Agreement"); and
WHEREAS, the Company and the Bank entered into that certain Sixth
Amendment to Revolving Credit and Term Loan Agreement dated March 31, 1997 (the
"Sixth Amendment"); and
WHEREAS, the Company and the Bank entered into that certain Seventh
Amendment to Revolving Credit and Term Loan Agreement dated December 1, 1997
(the "Seventh Amendment"); and
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WHEREAS, the Company has requested that the Bank amend (i) the required
Commitment Reductions; (ii) the Termination Date; and (iii) certain financial
covenants; and
WHEREAS, subject to and upon the terms and conditions hereinafter
stated, the Bank is willing to do so;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties to this Amendment hereby agree as
follows:
SECTION 1. Terms Defined in Agreement. As used in this Amendment,
except as may otherwise be provided herein, all capitalized terms which are
defined in the Agreement shall have the same meaning herein as therein, all of
such terms and their definitions being incorporated herein by reference.
SECTION 2. Amendments to Agreement. Subject to the conditions precedent
set forth in Section 3 hereof, the Agreement is hereby amended as follows:
(a) The definition of "EBITDA" in Article I of the Agreement is amended
to read in its entirety as follows:
"`EBITDA' shall mean, with respect to Pancho's Mexican Buffet,
Inc. and its Subsidiaries on a Consolidated basis for any fiscal
period, without duplication, Consolidated Net Income plus (ii)
depreciation, depletion, amortization and other non-cash items reducing
Consolidated Net Income plus (iii) interest expense plus (iv) income
tax expense, all determined in accordance with GAAP."
(b) The definition of "Loan Documents" in Article I of the Agreement is
amended to read in its entirety as follows:
"`Loan Documents' shall mean this Loan Agreement, the Note
(including any renewals, extensions and refundings thereof), the
Guaranty, the Security Instruments and any agreements or documents (and
with respect to this Loan Agreement, and such other agreements and
documents, any amendment or supplements thereto or modifications
thereof) executed or delivered pursuant to the terms of this Loan
Agreement."
(c) The definition of "Permitted Liens" in Article I of the Agreement
is amended to read in its entirety as follows:
"`Permitted Liens' shall mean: (i) purchase money liens
relating to or securing obligations in an aggregate amount not to
exceed five hundred thousand dollars ($500,000); (ii) pledges or
deposits made to secure payment of Worker's Compensation (or to
participate in any fund in connection with Worker's Compensation ),
unemployment insurance, pensions or social security programs; (iii)
Liens imposed by mandatory provisions of law such as for materialmen's,
mechanics warehousemen's and other like Liens arising in the ordinary
course of business, securing Indebtedness whose payment is not yet due
unless the same are beings
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contested in good faith and for which adequate reserves have been
provided; (iv) Liens for taxes, assessments and governmental charges or
levies imposed upon a Person or upon such Person's income or profits or
property, if the same are not yet due and payable or if the same are
being contested in good faith and as to which adequate reserves have
been provided; (v) good faith deposits in connection with tenders,
leases, real estate bids or contracts (other than contracts involving
the borrowing of money), pledges or deposits to secure public or
statutory obligations, deposits to secure (or in lieu of) surety, stay,
appeal or customs bonds and deposits to secure the payment of taxes,
assessments, customs duties or other similar charges; (vi) encumbrances
consisting of zoning restrictions, easements, or other restrictions on
the use of real property, provided that such do not impair the use of
such property for the uses intended, and none of which is violated by
Company or any of its Subsidiaries in connection with existing or
proposed structures or land use; and (vii) Liens created in favor of
the Bank."
(d) The following definition of "Phoenix Property" shall be added to
Article I of the Agreement in alphabetical order:
"`Phoenix Property' shall mean all real and personal property
located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ as more fully
described in that certain Arizona Deed of Trust, Security Agreement,
Financing Statement, and Assignment of Rental dated as of September 29,
1995 from Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee, for the benefit of Bank,
recorded in the official records of Maricopa County under File No.
96-0153894 on March 7, 1996."
(e) The following definition of "Security Instruments" shall be added
to Article I of the Agreement in alphabetical order:
"`Security Instruments' shall mean any and all deeds of trust
and security agreements delivered to the Bank pursuant to this Loan
Agreement including, but not limited to, those instruments delivered to
the Bank pursuant to Section 6.02(g) of this Loan Agreement."
(f) The following definition of "Shreveport Property" shall be added to
Article I of the Agreement in alphabetical order:
"`Shreveport Property' shall mean all real and personal
property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇."
(g) The definition of "Termination Date" in Article I of the Agreement
is amended to read in its entirety as follows:
"`Termination Date' shall mean September 30, 2000."
(h) Subsection 2.01(a) of the Agreement is hereby deleted therefrom and
the following subsection 2.01(a) is substituted in lieu thereof:
"(a) Revolving Loan Commitments. Subject to the terms and
conditions of this Loan Agreement, Bank agrees to extend to Company
from
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the date hereof through the Termination Date (the "Revolving Credit
Period"), a revolving line of credit which shall not exceed two million
and no/100 dollars ($2,000,000.00) at any one time outstanding prior to
December 31, 1998. On the last day of each and every calendar quarter
beginning with the calendar quarter ended December 31, 1998, the
maximum principal amount which may at any one time be outstanding under
the revolving line of credit shall be further and additionally reduced
by Company by the amount set forth opposite the particular quarter
below:
Quarter Commitment Reduction
------- --------------------
December 31, 1998 $100,000.00
March 31, 1999 $100,000.00
June 30, 1999 $200,000.00
September 30, 1999 $200,000.00
December 31, 1999 $100,000.00
March 31, 2000 $100,000.00
June 30, 2000 $200,000.00
September 30, 2000 The lesser of $1,000,000.00 or
actual Commitment outstanding
(each maximum amount outstanding under the line of credit from time to
time in effect is hereinafter referred to as the "Commitment"). The
amount of the Commitment shall also be reduced by one hundred percent
(100%) of the amount of net proceeds from the sale of real property of
Company or any Subsidiary applied to the payment of the Note, provided,
however, that the amount of the Commitment shall be reduced by sixty
percent (60%) of the amount of net proceeds from the sale of the
Shreveport Property and the Phoenix Property. Any payments received
from the proceeds of sale of real property of Company or any Subsidiary
will not reduce or affect the amount of the next scheduled Commitment
Reduction, but shall be applied in inverse order to the scheduled
Commitment Reductions. (For example, the application of $1,100,000 in
net proceeds from the sale of real estate would immediately permanently
reduce the Commitment and would cause the Commitment Reduction required
on September 30, 2000 to be reduced to zero and cause the required
Commitment Reduction on June 30, 2000 to be reduced to $100,000, and
the subsequent sale of the Phoenix Property for $100,000 would
immediately permanently reduce the Commitment and would cause the then
remaining required Commitment Reduction on June 30, 2000 to be reduced
to $40,000.) Bank shall not be obligated to make any Advance hereunder
if, immediately after giving effect thereto, the aggregate amount of
the Obligations of Company to Bank hereunder exceeds Bank's Commitment
in effect at such time.
Within the limits of this Section 2.01 during the Revolving
Credit Period, Company may borrow, prepay pursuant to Section 4.04
hereof and reborrow under this Section 2.01. Each advance made by Bank
under Section 2.01 and Section 2.02 is herein called an "Advance" and
all Advances made by Bank hereunder are herein collectively called a
`Revolving Credit Loan.'"
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(i) Subsection 8.01(g) of the Agreement, for sake of clarity, is
restated in its entirety as follows:
"(g) Requested Information: with reasonable promptness, such
other financial data or other data or information related to the
business or operations of Pancho's Mexican Buffet, Inc. or its
Subsidiaries as Bank may reasonably request and which is available to
Company on a "best efforts" basis. Bank agrees that Bank will not
intentionally disclose any information given to Bank by the Company
which is either proprietary or confidential and which is prominently
marked as such; provided, however, that this restriction shall not
apply to information which has at the time in question entered the
public domain, nor will this restriction prohibit Bank from disclosing
such information (a) as is required to be disclosed by Law or by any
order, rule or regulation (whether valid or invalid) of any Tribunal,
(b) to Bank's auditors, attorneys, or agents, or (c) to purchasers or
prospective purchasers or Assignees of interests in the Loan Agreement
or the Obligation."
(j) Subsection 8.01(h) of the Agreement is deleted therefrom and the
following Subsection 8.01(h) is substituted in lieu thereof:
"(h) This Subsection 8.01(h) is intentionally left blank."
(k) Section 9.01 of the Agreement is hereby deleted therefrom and the
following Section 9.01 is substituted in lieu thereof:
"9.01 This section intentionally left blank."
(l) Section 9.02 of the Agreement is hereby deleted therefrom and the
following Section 9.02 is substituted in lieu thereof:
"9.02 Indebtedness to Net Worth. Permit the ratio of the total
Indebtedness of Pancho's Mexican Buffet, Inc. and its Subsidiaries as
of the end of the most recent fiscal quarter to Consolidated Tangible
Net Worth as of the end of the most recent fiscal quarter to be greater
than 1.4 to 1.0; or"
(m) Section 9.04 of the Agreement is hereby deleted therefrom and the
following Section 9.04 is substituted in lieu thereof:
"9.04 Transfer of Assets. Transfer any funds or assets to PMB
International, Inc. and its Subsidiaries in an amount in excess of
$100,000 during the Company's fiscal year 1998 or transfer any funds to
PMB International, Inc. or its Subsidiaries during the Company's fiscal
year 1999 or thereafter; or"
(n) Section 9.10 of the Agreement, for sake of clarity, is restated in
its entirety as follows:
"9.10 Liquidation, Mergers and Disposition of Substantial
Assets. Liquidate, dissolve or reorganize; merge or consolidate with
any other company, firm or association in a transaction in which
Company is not the
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surviving corporation except for a merger or consolidation with
Pancho's Mexican Buffet, Inc. or one of its Subsidiaries; or make any
other substantial change in its capitalization or its business; or"
(o) Section 9.11 of the Agreement is hereby deleted therefrom and the
following Section 9.11 is substituted in lieu thereof:
"9.11 EBITDA. Permit EBITDA for the three-month period ending
on the date set forth below to be less than the amount set forth below
opposite such date:
Period Ended: Required Trailing-Three-Month EBITDA
------------- ------------------------------------
December 31, 1998 $100,000.00
March 31, 1999 $400,000.00
June 30, 1999 $600,000.00
September 30, 1999 $400,000.00
December 31, 1999 $400,000.00
March 31, 2000 $400,000.00
June 30, 2000 $600,000.00
September 30, 2000 $400,000.00; or"
(p) Section 9.13 of the Agreement is hereby deleted therefrom and the
following Section 9.13 is substituted in lieu thereof:
"9.13 This section intentionally left blank."
(q) Section 9.15 of the Agreement is hereby deleted therefrom and the
following Section 9.15 is substituted in lieu thereof:
"9.15 Dividends. (a) Pay any Dividend unless the twelve-month
rolling EBITDA exceeds three million dollars ($3,000,000) or (b) pay
Dividends in excess of one hundred fifty thousand dollars ($150,000) in
the aggregate during any fiscal year of Pancho's Mexican Buffet, Inc.;
provided, however, that so long as no Default (other than
non-compliance with Subsection 9.15(a) hereof) has occurred or would
occur as a result of the following, Pancho's Mexican Buffet, Inc. may
declare and pay cash Dividends on or before March 31, 1999 to any of
its stockholders in an amount necessary to make a payment in lieu of
fractional shares of Pancho's Mexican Buffet, Inc.'s common stock in
connection with Pancho's Mexican Buffet, Inc.'s proposed reverse stock
split, provided, further, that the aggregate amount of all such cash
Dividends shall not exceed $10,000.00; or"
(r) Section 9.16 of the Agreement is hereby deleted therefrom and the
following Section 9.16 is substituted in lieu thereof:
"9.16 This section intentionally left blank."
(s) Subsection 10.01(j) of the Agreement is hereby deleted therefrom
and the following Section 10.01(j) is substituted in lieu thereof:
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"(j) The failure of the Company to promptly apply net proceeds
from sale of real property of Company or any of its Subsidiaries to the
unpaid balance of the Note as set forth in Section 2.01(a) hereof; or"
(t) Article XI of the Agreement is hereby deleted therefrom and the
following Article XI is substituted in lieu thereof:
"ARTICLE XI
ARBITRATION PROGRAM
11.01 Arbitration. Upon the demand of any party, any Dispute
shall be resolved by binding arbitration (except as set forth in
Section 11.05 below) in accordance with the terms of this Loan
Agreement. A "Dispute" shall mean any action, dispute, claim or
controversy of any kind, whether in contract or tort, statutory or
common law, legal or equitable, now existing or hereafter arising under
or in connection with, or in any way pertaining to, any of the Loan
Documents, or any past, present or future extensions of credit and
other activities, transactions or obligations of any kind related
directly or indirectly to any of the Loan Documents, including without
limitation, any of the foregoing arising in connection with the
exercise of any self-help, ancillary or other remedies pursuant to any
of the Loan Documents. Any party may by summary proceedings bring an
action in court to compel arbitration of a Dispute. Any party who fails
or refuses to submit to arbitration following a lawful demand by any
other party shall bear all costs and expenses incurred by such other
party in compelling arbitration of any Dispute.
11.02 Governing Rules. Arbitration proceedings shall be
administered by the American Arbitration Association ("AAA") or such
other administrator as the parties shall mutually agree upon in
accordance with the AAA Commercial Arbitration Rules. All Disputes
submitted to arbitration shall be resolved in accordance with the
Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the
Loan Documents. The arbitration shall be conducted at a location in
Texas selected by the AAA or other administrator. If there is any
inconsistency between the terms hereof and any such rules, the terms
and procedures set forth herein shall control. All statutes of
limitation applicable to any Dispute shall apply to any arbitration
proceeding. All discovery activities shall be expressly limited to
matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court
having jurisdiction; provided however, that nothing contained herein
shall be deemed to be a waiver by any party that is a bank of the
protections afforded to it under 12 U.S.C. ss.91 or any similar
applicable state law.
11.03 No Waiver; Provisional Remedies, Self-Help and
Foreclosure. No provision hereof shall limit the right of any party to
exercise self-help remedies such as setoff, foreclosure against or sale
of any real or personal property collateral or security, or to obtain
provisional or ancillary remedies, including without limitation
injunctive relief, sequestration,
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attachment, garnishment or the appointment of a receiver, from a court
of competent jurisdiction before, after or during the pendency of any
arbitration or other proceeding. The exercise of any such remedy shall
not waive the right of any party to compel arbitration hereunder.
11.04 Arbitrator Qualifications and Powers; Awards.
Arbitrators must be active members of the Texas State Bar with
expertise in the substantive laws applicable to the subject matter of
the Dispute. Arbitrators are empowered to resolve Disputes by summary
rulings in response to motions filed prior to the final arbitration
hearing. Arbitrators (i) shall resolve all Disputes in accordance with
the substantive law of the state of Texas, (ii) may grant any remedy or
relief that a court of the state of Texas could order or grant within
the scope hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award recovery
of all costs and fees, to impose sanctions and to take such other
actions as they deem necessary to the same extent a judge could
pursuant to the Federal Rules of Civil Procedure, the Texas Rules of
Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5,000,000 or less shall be decided by a
single arbitrator who shall not render an award of greater than
$5,000,000 (including damages, costs, fees and expenses). By submission
to a single arbitrator, each party expressly waives any right or claim
to recover more than $5,000,000. Any Dispute in which the amount in
controversy exceeds $5,000,000 shall be decided by majority vote of a
panel of three arbitrators; provided however, that all three
arbitrators must actively participate in all hearings and
deliberations.
11.05 Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific,
written findings of fact and conclusions of law. In such arbitrations
(i) the arbitrators shall not have the power to make any award which is
not supported by substantial evidence or which is based on legal error,
(ii) an award shall not be binding upon the parties unless the findings
of fact are supported by substantial evidence and the conclusions of
law are not erroneous under the substantive law of the state of Texas,
and (iii) the parties shall have in addition to the grounds referred to
in the Federal Arbitration Act for vacating, modifying or correcting an
award the right to judicial review of (A) whether the findings of fact
rendered by the arbitrators are supported by substantial evidence, and
(B) whether the conclusions of law are erroneous under the substantive
law of the state of Texas. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is
supported by substantial evidence and not based on legal error under
the substantive law of the state of Texas.
11.06 Miscellaneous. To the maximum extent practicable, the
AAA, the arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing of
the Dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or results
thereof, except for disclosures of information by a party required in
the ordinary course of its business, by
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applicable law or regulation, or to the extent necessary to exercise
any judicial review rights set forth herein. If more than one agreement
for arbitration by or between the parties potentially applies to a
Dispute, the arbitration provision most directly related to the Loan
Documents or the subject matter of the Dispute shall control. This
arbitration provision shall survive termination, amendment or
expiration of any of the Loan Documents or any relationship between the
parties."
(t) Section 12.02 of the Agreement is hereby deleted therefrom and the
following Section 12.02 is substituted in lieu thereof:
"12.02 Notices. Any notices or other communications required
or permitted to be given by this Loan Agreement, the Note or any of the
other Loan Documents must be given in writing and personally delivered,
sent by telecopy or telex (answerback received) or mailed by prepaid
certified or registered mail, return receipt requested, to the party to
whom such notice or communication is directed at the address of such
party as follows:
Company: PMB Enterprises West, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank: ▇▇▇▇▇ Fargo Bank (Texas), National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice or other communication shall be deemed to have been
given on the date it is personally delivered or sent by telecopy or
telex as aforesaid or, if mailed, on the second day after it is mailed
as aforesaid (whether actually received or not). Any party may change
its address for purposes of this Loan Agreement by giving notice of
such change to all other parties pursuant to this Section 12.02."
(u) Section 12.04 of the Agreement is hereby deleted therefrom and the
following Section 12.04 is substituted in lieu thereof:
"12.04 Maximum Interest Rate. (a) It is the intention of the
parties hereto to comply with applicable usury laws, if any;
accordingly, notwithstanding any provision to the contrary in this Loan
Agreement, the Note or in any of the other Loan Documents securing the
payment hereof or otherwise relating hereto, in no event shall this
Loan Agreement, the Note or such other Loan Documents require or permit
the payment, taking, reserving, receiving, collection, or charging of
any sums constituting interest under applicable laws which exceed the
maximum amount permitted by such laws. If any such excess interest is
called for, contracted for, charged, taken, reserved, or received in
connection with the loans evidenced by the Note or in any of the Loan
Documents securing the
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payment thereof or otherwise relating thereto, or in any communication
by the Bank or any other Person to the Company or any other Person, or
in the event all or part of the principal or interest thereof shall be
prepaid or accelerated, so that under any of such circumstances or
under any other circumstance whatsoever the amount of interest
contracted for, charged, taken, reserved, or received on the amount of
principal actually outstanding from time to time under the Note shall
exceed the maximum amount of interest permitted by applicable usury
laws, then in any such event it is agreed as follows: (i) the
provisions of this paragraph shall govern and control, (ii) neither the
Company nor any other Person or entity now or hereafter liable for the
payment of the Note shall be obligated to pay the amount of such
interest to the extent such interest is in excess of the maximum amount
of interest permitted by applicable usury laws, (iii) any such excess
which is or has been received notwithstanding this paragraph shall be
credited against the then unpaid principal balance of the Note or, if
the Note has been or would be paid in full, refunded to the Company,
and (iv) the provisions of this Loan Agreement, the Note and the other
Loan Documents securing the payment thereof and otherwise relating
thereto, and any communication to the Company, shall immediately be
deemed reformed and such excess interest reduced, without the necessity
of executing any other document, to the maximum lawful rate allowed
under applicable laws as now or hereafter construed by courts having
jurisdiction hereof or thereof. Without limiting the foregoing, all
calculations of the rate of the interest contracted for, charged,
collected, taken, reserved, or received in connection with the Note or
this Loan Agreement which are made for the purpose of determining
whether such rate exceeds the maximum lawful rate shall be made to the
extent permitted by applicable laws by amortizing, prorating,
allocating and spreading during the period of the full term of the
loans, including all prior and subsequent renewals and extensions, all
interest at any time contracted for, charged, taken, collected,
reserved, or received. The terms of this paragraph shall be deemed to
be incorporated in every document and communication relating to the
Note, the loans or any other Loan Document.
(b) Texas Finance Code, Chapter 346 (formerly Tex.
Rev. Civ. Stat., Title 79, Chapter 15), which regulates certain
revolving loan accounts and revolving triparty accounts, shall not
apply to any revolving loan accounts created under the Note, this Loan
Agreement or the other Loan Documents or maintained in connection
therewith.
(c) To the extent that the interest rate laws of the
State of Texas are applicable to the Loans, the applicable interest
rate ceiling is the weekly ceiling (formerly the indicated rate
ceiling) determined in accordance with Tex. Rev. Civ. Stat., Title 79,
Article 5069-1D.003, also codified at Texas Finance Code, Section
303.301 (formerly Article 5069-1.01(a)(1)), and, to the extent that
this Loan Agreement, the Note or any other Loan Document is deemed an
open end account as such term is defined in Tex. Rev. Civ. Stat., Title
79, Article 5069-1B.002(14), also codified at Texas Finance Code
Section 3.01.001(3) (formerly Article 5069-1.01(f)), the Payee retains
the right to modify the interest rate in accordance with applicable
law."
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SECTION 3. Restructure Fee. At the time of execution of this Amendment,
the Company shall pay to the Bank a fee in the amount of ten thousand dollars
($10,000) together with all attorneys' fees incurred by the Bank (the
"Restructure Fee").
SECTION 4. Conditions of Effectiveness. As a condition precedent to the
effectiveness of the Bank's agreements and obligations hereunder, the Company
shall have taken the following actions and delivered to the Bank the following
documents and instruments, in form and substance satisfactory to the Bank:
(a) The Company shall have duly executed and delivered this
Amendment.
(b) The Company shall have paid all accrued and unpaid legal
fees and expenses referred to in Section 12.03 of the Agreement and Section 8
hereof to the extent invoices for such fees and expenses have been delivered to
the Company.
(c) The Company shall have delivered corporate resolutions of
the Company authorizing the execution of this Amendment.
(d) The Company shall have delivered an incumbency certificate
of the Company.
(e) The Company shall have paid to the Bank the Restructure
Fee.
(f) The Company shall have duly executed and delivered
amendments to the Security Instruments (hereinafter defined) requested by the
Bank.
(g) The Company shall have provided such other evidence as the
Bank may reasonably request to establish the consummation of the transactions
contemplated hereby, the taking of all proceedings in connection herewith and
compliance with the conditions set forth in this Amendment.
SECTION 5. Representations and Warranties of the Company. Each of the
Company and the Guarantors, represents and warrants to the Bank, with full
knowledge that the Bank is relying on the following representations and
warranties in executing this Amendment, as follows:
(a) Each of the Company and the Guarantors has corporate power
and authority to execute, deliver and perform this Amendment, and all corporate
action on the part of the Company and the Guarantors requisite for the due
execution, delivery and performance of this Amendment has been duly and
effectively taken.
(b) The Agreement as amended by this Amendment and the Loan
Documents and each and every other document executed and delivered in connection
with this Amendment to which the Company or any of its Subsidiaries or any
Guarantor is a party constitute the legal, valid and binding obligations of the
Company and any of its Subsidiaries and each of the Guarantors to the extent it
is a party thereto, enforceable against such Person in accordance with their
respective terms.
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(c) This Amendment does not and will not violate any
provisions of the articles or certificate of incorporation or bylaws of the
Company or any Guarantor or any contract, agreement, instrument or requirement
of any Governmental Authority to which the Company or any Guarantor is subject.
The Company's and the Guarantors' execution of this Amendment will not result in
the creation or imposition of any lien upon any properties of the Company or
either Guarantor, other than those permitted by the Agreement and this
Amendment.
(d) The Company's and the Guarantors' execution, delivery and
performance of this Amendment does not require the consent or approval of any
other Person, including, without limitation, any governmental authority.
(e) The unaudited consolidated balance sheet of the Company
and its Subsidiaries as of August 31, 1998, the related consolidated statements
of earnings, capital accounts, and cash flows of the Company for the period then
ended and the consolidated balance sheet and related consolidated statements of
earnings, capital accounts and cash flows for the period commencing the first
day of the fiscal year and ending on the last day of such quarter which have
been furnished to the Bank, fairly present the financial condition of the
Company and its Subsidiaries as at such date and the results of the operations
of the Company and its Subsidiaries for the periods ended on such date, all in
accordance with GAAP applied on a consistent basis, and since August 31, 1998,
there has been no material adverse change in such condition or operations.
(f) Except as expressly set forth in Section 7(a) hereof, each
of the Company and the Guarantors has performed and complied with all agreements
and conditions contained in the Agreement required to be performed or complied
with by them prior to or at the time of delivery of this Amendment. Except as
expressly waived pursuant to Section 7(a) hereof, no Default or Event of Default
exists.
(g) Nothing in this Section 5 of this Amendment is intended to
amend any of the representations or warranties contained in the Agreement or the
Loan Documents to which the Company or any of its Subsidiaries or any Guarantor
is a party. The Company represents and warrants that all of the representations
and warranties contained in the Agreement and in all instruments and documents
executed pursuant thereto or contemplated thereby are true and correct in all
material respects on and as of this date, except (i) such representations that
relate solely to an earlier date and that were true and correct on such earlier
date, and (ii) the breach or inaccuracy of representations and warranties about
which the Bank has been notified in writing prior to the date of this Amendment.
SECTION 6. Reference to and Effect on the Agreement.
(a) Upon the effectiveness of Sections 2 and 3 hereof, on and
after the Effective Date, each reference in the Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import, shall mean and be a
reference to the Agreement as amended hereby.
(b) Except as expressly provided herein, the Agreement and the
other Loan Documents shall remain in full force and effect in accordance with
their respective
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13
terms, and this Amendment shall not be construed to impair the validity,
perfection or priority of any lien or security interest securing the
Obligations.
SECTION 7. Limited Waiver. (a) In reliance upon the representations and
warranties of the Company herein set forth, the Bank hereby waives any Default
or Event of Default caused by the Company's failure to comply with Sections
9.01, 9.02, 9.11, 9.13, 9.14 and 9.16 of the Agreement during the months of
April, May, June, July and August, 1998.
(b) Each of the Company and the Guarantors agrees that, except
as expressly waived pursuant to Section 7(a) above, no Event of Default and no
Default has been waived or remedied by the execution of this Amendment by the
Bank, and any such Default or Event or Default heretofore arising and currently
continuing shall continue after the execution and delivery hereof. Nothing
contained in this Amendment nor any past indulgence by the Bank nor any other
action or inaction on behalf of the Bank (i) shall constitute or be deemed to
constitute a waiver of any defaults or events of default which may exist under
the Agreement or the other Loan Documents, or (ii) shall constitute or be deemed
to constitute an election of remedies by the Bank or a waiver of any of the
rights or remedies of the Bank provided in the Agreement or the other Loan
Documents or otherwise afforded at law or in equity.
SECTION 8. Cost, Expenses and Taxes. The Company agrees to pay on
demand all reasonable costs and expenses of the Bank in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including reasonable
attorneys' fees and out-of-pocket expenses of the Bank. In addition, the Company
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery, filing or recording of
this Amendment and the other instruments and documents to be delivered
hereunder, and agrees to save the Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees.
SECTION 9. Extent of Amendments. Except as otherwise expressly provided
herein, the Agreement and the other Loan Documents are not amended, modified or
affected by this Amendment. Each of the Company and the Guarantors ratifies and
confirms that (i) except as expressly amended hereby, all of the terms,
conditions, covenants, representations, warranties and all other provisions of
the Agreement remain in full force and effect, (ii) each of the other Loan
Documents are and remain in full force and effect in accordance with their
respective terms, and (iii) the property referenced in the Security Instruments
(such property herein the "Collateral") is unimpaired by this Amendment.
SECTION 10. Guaranties. Each of the Guarantors hereby consents to and
accepts the terms and conditions of this Amendment, agrees to be bound by the
terms and conditions hereof and ratifies and confirms that its Unconditional
Guaranty Agreement executed and delivered to the Bank on February 16, 1994,
guaranteeing payment of the Obligations of the Company to the Bank, is and
remains in full force and effect and secures payment of, among other things, the
Note as renewed, rearranged and extended hereby.
SECTION 11. Grant and Affirmation of Security Interest. The Company
hereby grants to the Bank a security interest in the Collateral to secure
payment and performance
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14
of the Note and the obligations described in the Agreement, the other Loan
Documents, and all documents and instruments executed in connection therewith,
and the Company hereby confirms and agrees that any and all liens, security
interests and other security or Collateral now or hereafter held by the Bank as
security for payment and performance of the Obligations hereby are renewed,
extended and carried forth to secure payment and performance of all of the
Obligations, including, without limitation, the Note. The Loan Documents
(including without limitation, the Security Instruments) executed by the Company
are and remain legal, valid and binding obligations of the parties thereto,
enforceable in accordance with their respective terms.
SECTION 12. Execution and Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of the signature page of
this Amendment by facsimile shall be equally as effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 13. Severability. In the event any one or more provisions
contained in the Agreement or this Amendment should be held to be invalid,
illegal or unenforceable in any respect, the validity, enforceability and
legality of the remaining provisions contained herein and therein shall not be
affected in any way or impaired thereby and shall be enforceable in accordance
with their respective terms.
SECTION 14. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and, to the extent
applicable, the federal laws of the United States of America.
SECTION 15. Interpretation. In the event of any inconsistency between
the terms of this Amendment and the Agreement or any of the other Loan
Documents, this Amendment shall govern. Each of the Company and Guarantors
acknowledge that it has consulted with counsel and with such other experts and
advisors as it has deemed necessary in connection with the negotiation,
execution and delivery of this Amendment. This Amendment shall be construed
without regard to any presumption or rule requiring that it be construed against
the party causing this Amendment or any part hereof to be drafted.
SECTION 16. Headings. Section headings in this Amendment are included
herein for convenience and reference only and shall not constitute a part of
this Amendment for any other purpose.
SECTION 17. Benefit of Agreement. This Amendment shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. No other Person shall be entitled to claim
any right or benefit hereunder, including, without limitation, the status of a
third-party beneficiary of this Amendment.
SECTION 18. Arbitration Program. The parties agree to be bound by the
terms and provisions of the Arbitration Program of the Bank set forth in Article
XI of the Agreement which is incorporated by reference herein and is
acknowledged as received by the parties pursuant to which any and all disputes
arising hereunder, under the Agreement, under any of the other Loan Documents,
or under any of the documents and instruments
-14-
15
contemplated thereby, or pertaining hereto or thereto, shall be resolved by
mandatory binding arbitration upon the request of any party.
SECTION 19. WAIVERS AND RELEASE OF CLAIMS. As additional consideration
to the execution, delivery, and performance of this Amendment by the parties
hereto and to induce the Bank to enter into this Amendment, each of the Company
and each Guarantor represents and warrants that none of the Company and
Guarantors knows of any facts, events, statuses or conditions which, either now
or with the passage of time or the giving of notice, or both, constitute or will
constitute a basis for any claim or cause of action against the Bank or any
defense, counterclaim or right of setoff to the payment or performance of any
obligations or indebtedness of the Company or any Guarantor to the Bank, and in
the event any such facts, events, statuses or conditions exist or have existed,
whether known or unknown, WHETHER DUE TO THE BANK'S, ITS REPRESENTATIVES',
AGENTS', OFFICERS', DIRECTORS', EMPLOYEES', SHAREHOLDERS', OR SUCCESSORS' OR
ASSIGNS' OWN NEGLIGENCE, each of the Company and the Guarantors for each of
themselves, their respective Subsidiaries, their respective representatives,
agents, officers, directors, employees, shareholders, and successors and assigns
(collectively called the "Indemnifying Parties"), hereby fully, finally,
completely, generally and forever releases, discharges, acquits, and
relinquishes the Bank and its respective representatives, agents, officers,
directors, employees, shareholders, and successors and assigns (collectively
called the "Indemnified Parties"), from any and all claims, actions, demands,
and causes of action of whatever kind or character, whether joint or several,
whether known or unknown, WHETHER DUE TO ANY OF THE INDEMNIFIED PARTIES' OWN
NEGLIGENCE, which may have arisen or accrued prior to the date of execution of
this Amendment, for any and all injuries, harm, damages, penalties, costs,
losses, expenses, attorneys' fees, and/or liabilities whatsoever and whenever
incurred or suffered by any of them, including, without limitation, any claim,
demand, action, damage, liability, loss, cost, expense, and/or detriment, of any
kind or character, growing out of or in any way connected with or in any way
resulting from any breach of any duty of loyalty, fair dealing, care, fiduciary
duty, or any other duty, confidence, or commitment, undue influence, duress,
economic coercion, conflict of interest, negligence, bad faith, violations of
the racketeer influence and corrupt organizations act, intentional or negligent
infliction of distress or harm, tortious interference with contractual
relations, tortious interference with corporate governance or prospective
business advantage, breach of contract, failure to perform any obligation under
any of the Loan Documents, deceptive trade practices, libel, slander,
conspiracy, interference with business, usury, strict liability, lender
liability, breach of warranty or representation, fraud, or any other claim or
cause of action (herein being collectively referred to as "Claims"). IT IS
EXPRESSLY AGREED THAT THE CLAIMS RELEASED HEREBY INCLUDE THOSE ARISING FROM OR
IN ANY MANNER ATTRIBUTABLE TO THE NEGLIGENCE (SOLE, CONCURRENT, ORDINARY, OR
OTHERWISE), OR OTHER TORTIOUS CONDUCT OF ANY OF THE INDEMNIFIED PARTIES (other
than any claims arising solely out of an Indemnified Party's willful misconduct
or gross negligence). Notwithstanding any provision of this Amendment or any
other Loan Document, this Section shall remain in full force and effect and
shall survive the delivery and payment of the Note, this Amendment and the other
Loan Documents and the making, extension, renewal, modification, amendment or
restatement of any thereof.
SECTION 20. INDEMNIFICATION. As additional consideration to the
execution, delivery, and performance of this Amendment by the parties hereto and
to induce the Bank to enter into this Amendment, the Indemnifying Parties hereby
agree to
-15-
16
indemnify, hold harmless, and defend each of the Indemnified Parties from and
against any and all Claims of any nature or character, at law or in equity,
known or unknown, which may have arisen prior to the date hereof, or accrued to,
or could be claimed or asserted by, any third party prior to the date hereof,
INCLUDING WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR IN ANY MANNER
ATTRIBUTABLE TO THE NEGLIGENCE (SOLE, CONCURRENT, ORDINARY OR OTHERWISE), OR
OTHER TORTIOUS CONDUCT OF ANY OF THE INDEMNIFIED PARTIES (other than any claims
arising solely out of an Indemnified Party's willful misconduct or gross
negligence). Notwithstanding any provision of this Amendment or any other Loan
Document, this Section shall remain in full force and effect and shall survive
the delivery and payment of the Note, this Agreement and the other Loan
Documents and the making, extension, renewal, modification, amendment or
restatement of any thereof.
SECTION 21. NO ORAL AGREEMENTS. THE AGREEMENT (AS AMENDED BY THIS
AMENDMENT) AND THE OTHER LOAN DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND 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.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
THE BANK: THE COMPANY:
▇▇▇▇▇ FARGO BANK (TEXAS), PMB ENTERPRISES WEST, INC.
NATIONAL ASSOCIATION (formerly
First Interstate Bank of Texas, N.A.)
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Title: SR V.P. & SEC
CONSENTED AND AGREED TO THIS
3rd day of NOVEMBER, 1998 TO BE
EFFECTIVE AS OF SEPTEMBER 30, 1998:
PANCHO'S MEXICAN BUFFET, INC., a
Delaware corporation
By /s/ W. ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: VP-TREASURER & CFO
PAMEX OF TEXAS, INC., a Texas
corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: SEC/TREAS
PMB INTERNATIONAL, INC., a Delaware
corporation
By /s/ W. ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: VP-TREASURER & CFO
[THIS IS THE SIGNATURE PAGE TO THE EIGHTH AMENDMENT
TO REVOLVING CREDIT AND TERM LOAN AGREEMENT]
18
EXHIBIT C
UNANIMOUS CONSENT
OF
DIRECTORS AND SHAREHOLDERS
OF
PMB ENTERPRISES WEST, INC.
IN LIEU OF A SPECIAL MEETING
The undersigned, being all members of the Board of Directors and all
Shareholders of PMB Enterprises West, Inc., a New Mexico corporation (the
"Corporation") do hereby consent to and authorize the adoption of the following
recitals and resolutions without a meeting, dated this 30th day of September,
1998.
WHEREAS, the Corporation is a party to that certain Revolving Credit
and Term Loan Agreement dated February 16, 1994 by and between the
Corporation and ▇▇▇▇▇ Fargo Bank (Texas), National Association (formerly
First Interstate Bank of Texas, N.A.,) (herein the "Bank") (the
"Agreement") as same has been amended and modified by that certain First
Amendment to Revolving Credit and Term Loan Agreement dated February 9,
1995 by and between the Corporation and the Bank (the "First Amendment"),
that certain Second Amendment to Revolving Credit and Term Loan Agreement
dated May 9, 1995 by and between the Corporation and the Bank (the "Second
Amendment"), that certain Third Amendment to Revolving Credit and Term Loan
Agreement dated September 29, 1995 by and between the Corporation and the
Bank (the "Third Amendment"), that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated February 16, 1996 by and between the
Corporation and the Bank (the "Fourth Amendment"), that certain Fifth
Amendment to Revolving Credit and Term Loan Agreement dated July 9, 1996 by
and between the Corporation and the Bank (the "Fifth Amendment"), that
certain Letter Agreement dated December 16, 1996 by and between the
Corporation and the Bank (the "First Letter Agreement"), that certain
Letter Agreement dated February 11, 1997 by and between the Corporation and
the Bank (the Second Letter Agreement"), that certain Sixth Amendment to
Revolving Credit and Term Loan Agreement dated March 31, 1997 by and
between the Corporation and the Bank (the "Sixth Amendment") and that
certain Seventh Amendment to Revolving Credit and Term Loan Agreement dated
December 1, 1997 by and between the Corporation and the Bank (the "Seventh
Amendment") (the Agreement as so amended is herein called the "Original
Loan Agreement")
WHEREAS, loans made under the Original Loan Agreement are evidenced
by, other things, the promissory note of the Corporation payable to the
order of the Bank, hereinafter called the "Note;" and
19
WHEREAS, loans made under the Original Loan Agreement are secured by
certain real and personal property pursuant to the Security Instruments as
more fully described in the Original Loan Agreement; and
WHEREAS, the Corporation and the Bank now desire to amend certain
terms and provisions of the Original Loan Agreement and the Security
Instruments in accordance with the terms and provisions set forth in that
certain Eighth Amendment dated as of September 30, 1998 by and between the
Corporation and the Bank (the "Eighth Amendment") (the Original Loan
Agreement, as amended, modified, corrected and supplemented by the Eighth
Amendment is hereinafter the "Loan Agreement "), a copy of the Eighth
Amendment and the Original Loan Agreement have been submitted to and
reviewed by each of the Board of Directors; and
NOW, THEREFORE, BE IT RESOLVED THAT, the form, terms and provisions of
the Eighth Amendment, to be executed by the Corporation, which provides
for, among other things, certain modifications and amendments of the
Original Loan Agreement, is hereby approved; and
RESOLVED FURTHER, the President, any Executive Vice-President or
Vice-President or any other officer of the Corporation be, and each of them
hereby is, authorized and empowered to execute and deliver in the name and
on behalf of the Corporation (i) the Eighth Amendment substantially in the
form approved in the foregoing resolutions, with such changes therein as
shall be approved by the officer executing same, such approval to be
conclusively evidenced by such officer's execution thereof, and (ii) any
and all other agreements, financing statements, deeds of trust, security
agreements, certificates, or other documents described in the Loan
Agreement or necessary or required by the Bank (collectively herein the
"Documents"), and to take any and all other actions relating to or in
connection with these resolutions as may be necessary to effectuate the
purpose of these resolutions; and
RESOLVED FURTHER, the officers, employees and agents of the
Corporation be, and they hereby are, and each of them acting singly hereby
is, authorized and directed on behalf of the Corporation to do all acts and
things required or provided for by the provisions of documents described in
the foregoing resolutions and to do all acts and to execute and deliver any
and all instruments, documents, consents, acknowledgments, agreements or
certificates and to do or cause to be done any and all other things as may
in the judgment of such officer, or agent be deemed necessary, appropriate
or desirable in order to give effect to and carry out the foregoing
resolutions or the matters pertaining to the documents described in the
foregoing resolutions and the execution and delivery of such instruments,
documents, consents, acknowledgments, agreements or certificates and the
taking thereof by the officer and officers so acting shall be conclusive
evidence that the same has been approved by the Corporation; and
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PMB ENTERPRISES WEST, INC.
OFFICER'S CERTIFICATE
The undersigned hereby certifies that he is the duly elected,
qualified and acting Secretary of PMB Enterprises West, Inc., a New Mexico
corporation (the "Company," and as such officer, he is familiar with the
Company's properties, affairs and records. The undersigned hereby certifies
as follows:
1. Attached hereto as Exhibit "A" is a true and correct copy of the
Articles of Incorporation of the Company, as filed with the Secretary of
State of the State of New Mexico. Such Articles of Incorporation have not
been amended, modified or restated except as shown in Exhibit "A," and are
in full force and effect as of the date hereof.
2. Attached hereto as Exhibit "B" is a true and correct copy of the
Bylaws of the Company. Such Bylaws are in full force and effect as of the
date hereof and have not been amended, supplemented, altered or repealed.
3. Attached hereto as Exhibit "C" is a true, complete and correct copy
of certain resolutions adopted effective as of September 30, 1998 (the
"Resolutions"). The Resolution shave not been amended, modified, repealed
or otherwise altered in any manner and are in full force and effect as of
the date hereof.
4. Each officer of the Company has been duly authorized to execute and
deliver the Eighth Amendment To Revolving Credit and Term Loan Agreement
dated as of September 30, 1998 (the "Eighth Amendment"), each of the
Appointments of Successor Trustee and Amendment to Deed of Trust, Security
Agreement, Financing Statement and Assignment of Rental dated as of
September 30, 1998 and other documents required by the Eighth Amendment for
and on behalf of the Company.
5. The persons named below are on the date hereof the duly elected and
qualified officers of the Company holding the office set forth opposite
their respective names and their signatures appearing on the right of their
respective names are the genuine signatures of said officers.
Officer Name Signature of Officer
------- ---- -----------------------
President ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Senior Vice President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and Secretary -----------------------
Assistant Secretary ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-----------------------
IN WITNESS WHEREOF, I have hereunto subscribed my signature effective
as of the 3rd day of November, 1998
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
21
WHEREAS, loans made under the Original Loan Agreement are secured by
certain real and personal property pursuant to the Security Instruments as
more fully described in the Original Loan Agreement; and
WHEREAS, the Corporation and the Bank now desire to amend certain
terms and provisions of the Original Loan Agreement and the Security
Instruments in accordance with the terms and provisions set forth in that
certain Eighth Amendment dated as of September 30, 1998 by and between the
Corporation and the Bank (the "Eighth Amendment") (the Original Loan
Agreement, as amended, modified, corrected and supplemented by the Eighth
Amendment is hereinafter the "Loan Agreement"), a copy of the Eighth
Amendment and the Original Loan Agreement have been submitted to and
reviewed by each of the Board of Directors; and
NOW, THEREFORE, BE IT RESOLVED THAT, the form, terms and provisions of
the Eighth Amendment, to be executed by the Corporation, which provides
for, among other things, certain modifications and amendments of the
Original Loan Agreement, is hereby approved; and
RESOLVED FURTHER, the President, any Executive Vice-President or
Vice-President or any other officer of the Corporation be, and each of them
hereby is, authorized and empowered to execute and deliver in the name and
on behalf of the Corporation (i) the Eighth Amendment substantially in the
form approved in the foregoing resolutions, with such changes therein as
shall be approved by the officer executing same, such approval to be
conclusively evidenced by such officer's execution thereof, and (ii) any
and all other agreements, financing statements, deeds of trust, security
agreements, certificates, or other documents described in the Loan
Agreement or necessary or required by the Bank (collectively herein the
"Documents"), and to take any and all other actions relating to or in
connection with these resolutions as may be necessary to effectuate the
purpose of these resolutions; and
RESOLVED FURTHER, the officers, employees and agents of the
Corporation be, and they hereby are, and each of them acting singly hereby
is authorized and directed on behalf of the Corporation to do all acts and
things required or provided for by the provisions of documents described in
the foregoing resolutions and to do all acts and to execute and deliver any
and all instruments, documents, consents, acknowledgments, agreements or
certificates and to do or cause to be done any and all other things as may
in the judgment of such officer, or agent be deemed necessary, appropriate
or desirable in order to give effect to and carry out the foregoing
resolutions or the matters pertaining to the documents described in the
foregoing resolutions and the execution and delivery of such instruments,
documents, consents, acknowledgments, agreements or certificates and the
taking thereof by the officer and officers so acting shall be conclusive
evidence that the same has been approved by the Corporation; and
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RESOLVED FURTHER, that each of the President, any Executive
Vice-president or Vice-President or any other officer of the Corporation is
authorized hereby to enter into any agreement amending or modifying the
terms of the Documents on such terms as such officer may deem to be in the
best interest of the Corporation; and
RESOLVED FURTHER, that the execution by the President, any Executive
Vice-President or Vice-President or any other officer of any document
authorized by the foregoing Resolutions or any document executed in the
accomplishment of any action or actions so authorized, is, and/or shall
become upon delivery the enforceable and binding act and obligation of the
Corporation, without the necessity of the signature or attestation of any
other officer of the Corporation or the affixing of the corporate seal; and
RESOLVED FURTHER, that all acts, transactions, or agreements
undertaken prior to the adoption of these resolutions by any of the
officers or representatives of the Corporation in its name and for its
account with the Bank, in connection with the foregoing matters are
ratified, confirmed and adopted by the Corporation; and
RESOLVED FURTHER, that a copy of the Agreement (including exhibits)
reviewed by each of the Directors and approved by them shall be filed with
the minutes of this meeting of the Board of Directors of the Corporation
and shall be filed in the Corporation's records; and
RESOLVED FURTHER, that the Secretary and any Assistant Secretary of
the Corporation each is authorized and directed hereby to certify to the
Bank the form of Agreement (with exhibits) approved by the Directors in
these resolutions.
IN WITNESS WHEREOF, the undersigned have signed this Consent
effective as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, III
-------------------------------------
IN WITNESS WHEREOF, I have hereunto subscribed my ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, III
signature effective as of the 3rd day of November, 1998.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
/s/ W. ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇
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CONSENT OF SHAREHOLDER OF
PMB ENTERPRISES WEST, INC.
Pursuant to Section 53-11-8 of the New Mexico Statutes, the undersigned
corporation, being the sole shareholder of PMB ENTERPRISES WEST, INC., hereby
consents to the above resolution and corporate action.
Dated November 3, 1998
PANCHO'S MEXICAN BUFFET, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President and CEO
