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EXHIBIT 10(z)
SEVENTH AMENDMENT TO REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This Seventh Amendment To Revolving Credit and Term Loan Agreement
(this "Seventh Amendment") is made by and between PMB Enterprises West, Inc., a
New Mexico corporation ("Company"), and Xxxxx Fargo Bank (Texas), National
Association (formerly First Interstate Bank of Texas, N.A.) ("Bank").
WHEREAS, the parties entered into that one certain Revolving Credit
and Term Loan Agreement dated February 16, 1994 (the Revolving Credit and Term
Loan Agreement dated February 16, 1994 and all amendments thereto and
restatements thereof are hereinafter collectively referred to as the "Loan
Agreement"); and
WHEREAS, the parties entered into that one certain First Amendment To
Revolving Credit and Term Loan Agreement dated February 9, 1995 ("First
Amendment"); and
WHEREAS, the parties entered into that one certain Second Amendment To
Revolving Credit and Term Loan Agreement dated May 9, 1995 ("Second
Amendment"); and
WHEREAS, the parties entered into that one certain Third Amendment To
Revolving Credit and Term Loan Agreement dated September 29, 1995 ("Third
Amendment"); and
WHEREAS, the parties entered into that one certain Fourth Amendment To
Revolving Credit and Term Loan Agreement dated February 16, 1996 ("Fourth
Amendment"); and
WHEREAS, the parties entered into that one certain Fifth Amendment To
Revolving Credit and Term Loan Agreement dated July 9, 1996 ("Fifth
Amendment"); and
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WHEREAS, the parties entered into a letter agreement dated December
16, 1996; and
WHEREAS, the parties entered into a letter agreement dated February
11, 1997; and
WHEREAS, the parties entered into that one certain Sixth amendment To
Revolving Credit and Term Loan Agreement dated March 31, 1997 ("Sixth
Amendment"); and
WHEREAS, the parties desire to amend the Loan Agreement in certain
respects; and
WHEREAS, capitalized terms used herein shall have the meaning assigned
to them in the Loan Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and among the
parties as follows:
1.
The definition of Termination Date in Article I of the Loan Agreement
is amended to read in its entirety as follows:
"Termination Date" shall mean June 30, 2000.
2.
The following new definitions are added to Article I of the Loan
Agreement:
"Applicable Margin" shall mean the rate per annum set forth
below for the type of advance indicated in effect from time to time in
the case of a Floating Prime Advance and at the time of Advance in the
case of a Eurodollar Advance:
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12-Month Trailing Floating Prime Eurodollar
EBITDA Advance Advance
----------------- -------------- ----------
<$3,200,000 1.0% N/A
$3,200,000 - $4,000,000 .5% N/A
$4,000,000 - $4,500,000 -0- N/A
>$4,500,000 -0- 2.75%
"Commitment Reduction" shall mean the amount shown opposite each
calendar quarter in section 2.01(a).
"EBITDA" shall mean earnings before interest, taxes, depreciation and
amortization.
3.
Section 2.01(a) of the Loan Agreement is amended to read as follows:
(a) Revolving Loan Commitments. Subject to the terms and
conditions of this Loan Agreement, Bank agrees to extend to Company from the
date hereof through the Termination Date (the "Revolving Credit Period"), a
revolving line of credit which shall not exceed three million four hundred
sixty-one thousand seven hundred forty-seven and 80/100 dollars ($3,461,747.80)
at any one time outstanding prior to December 31, 1997. On the last day of each
and every calendar quarter beginning with the calendar quarter ended December
31, 1997 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, 1997 $161,747.80
March 31, l998 100,000.00
June 30, 1998 600,000.00
September 30, 1998 600,000.00
December 31, 1998 100,000.00
March 31, 1999 200,000.00
June 30, 1999 600,000.00
September 30, 1999 600,000.00
December 31, 1999 100,000.00
March 31, 2000 200,000.00
June 30, 2000 200,000.00
(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 the amount of net proceeds from the sale of
real property of Borrower or any Subsidiary applied to the payment of the Note.
Any payments received from the proceeds of sale of real property of Borrower or
any Subsidiary will not reduce or affect the next scheduled Commitment
Reduction, but shall be applied in inverse order to the scheduled
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Commitment Reductions. For example, the application of $300,000 in net proceeds
from the sale of real estate will first cause the Commitment Reduction on March
31, 2000 to be reduced to zero and cause the Commitment Reduction on December
31, 1999 to be reduced to $300,000, and the subsequent application of $400,000
of net proceeds from a second sale of real estate will reduce the Commitment
Reduction on December 31, 1999 to zero and cause the Commitment Reduction on
September 30, 1999 to be reduced to $400,000. 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".
4.
Section 2.02(a) of the Loan Agreement is amended to read as follows:
(a) Request for Advance. Each request by Company to Bank
for an Advance under Section 2.01 hereof (a "Request for Advance")
shall be in writing and specify the aggregate amount of such requested
Advance, the requested date of such Advance, and when the Request for
Advance specifies a Eurodollar Advance, the Interest Period which
shall be applicable thereto; provided, however, Borrower shall not be
entitled to request a Eurodollar Advance unless 12-months trailing
EBITDA exceeds four million five hundred thousand dollars
($4,500,000). The aggregate number of unpaid Eurodollar Advances shall
not exceed four (4) at any time. Company shall furnish to Bank the
Request for Advance by at least 11:00 a.m. (Fort Worth time) three (3)
Eurodollar Business Days prior to the requested Eurodollar Advance
date (which must be a Eurodollar Business Day) and by at least 2:00
p.m. (Fort Worth time) on the requested borrowing date (which must be
a Business Day) for a Floating Prime Advance. Any written Request for
Advance shall: (i) in the case of a Floating Prime Advance, be in the
form attached hereto as Exhibit "C," and (ii) in the case of a
Eurodollar Advance, be in the form attached hereto as Exhibit "D."
Each Floating Prime Advance shall be in an aggregate principal amount
of ten thousand dollars ($10,000.00) or any integral multiple of ten
thousand dollars ($10,000.00). Each Eurodollar Advance shall be in an
amount of at least one million dollars ($1,000,000.00) or any higher
integral multiple of $1,000,000.00.
Prior to making a Request for Advance, Company may (without
specifying whether the anticipated Advance shall be a Floating Prime
Advance or Eurodollar Advance) request that Bank provide Company with
the most recent Interbank Offered Rate available to Bank. Bank shall
endeavor to provide such quoted rates to Company on the date of such
request.
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Each Request for Advance shall be irrevocable and binding on
Company and, in respect of the Advance specified in such Request for
Advance, Company shall indemnify Bank against any cost, loss or
expense incurred by Bank as a result of any failure to fulfill, on or
before the date specified for such Advance, the conditions to such
Advance set forth herein, including without limitation, any cost, loss
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by Bank to fund the Advance to be
made by Bank as part of such Advance when such Advance, as a result of
such failure, is not made on such date.
5.
Section 2.02(c) of the Loan Agreement is amended to read in its
entirety as follows:
(c) Selection of Interest Option. Upon making a Request
for Advance under Section 2.02(a) hereof, Company shall advise Bank as
to whether the Advance shall be (i) a Eurodollar Advance, in which
case Company shall specify the applicable Interest Period therefor, or
(ii) a Floating Prime Advance. At least three (3) Eurodollar Business
Days prior to the termination of each Interest Period with respect to
a Eurodollar Advance (whether such termination occurs before or after
the Termination Date) Company shall give Bank written notice (the
"Rollover Notice") of the interest option which shall be applicable to
such Advance to be rolled over upon the expiration of such Interest
Period. If Company shall specify that such Advance shall be a
Eurodollar Advance, such Rollover Notice shall also specify the length
of the succeeding Interest Period selected by Company with respect to
such Advance. Each Rollover Notice shall be irrevocable and effective
upon notification thereof to Bank. If the required Rollover Notice
shall not have been timely received by Bank prior to the expiration of
the then relevant Interest Period, then Company shall be deemed to have
elected to have such Advance be a Floating Prime Advance. With respect
to any Floating Prime Advance, Company shall have the right, on any
Eurodollar Business Day (a "Conversion Date") to convert such Floating
Prime Advance to a Eurodollar Advance by giving Bank a Rollover Notice
of such selection at least three (3) Eurodollar Business Days prior to
such Conversion Date if at such time twelve (12) months trailing
EBITDA exceeds four million five hundred thousand dollars
($4,500,000).
Notwithstanding anything to the contrary contained herein,
Company shall have no right to request a Eurodollar Advance if (a) the
interest rate applicable thereto under Section 2.03 hereof would
exceed the Maximum Rate in effect on the first day of the Interest
Period applicable to such Eurodollar Advance, (b) at such time twelve
(12) months trailing EBITDA is equal to or less than four million five
hundred thousand dollars ($4,500,000), or (c) if an Event of Default
has occurred and is continuing.
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6.
Section 2.03 of the Loan Agreement is amended to read in its
entirety as follows:
2.03. Interest Rates. The unpaid principal of each
Floating Prime Advance shall bear interest from the date of
advance until paid at a rate per annum which shall from day to
day be equal to the lesser of: (a) the Floating Prime Rate,
plus the Applicable Margin in effect from day to day or (b)
the Maximum Rate. The unpaid principal of each Eurodollar
Advance shall bear interest from the date of advance until
paid at a rate per annum which shall be equal to the lesser of
(a) the sum of the Adjusted Interbank Rate for the applicable
Interest Period, plus the Applicable Margin or (b) the Maximum
Rate. All past due principal of, and to the extent permitted
by applicable law, interest on the Note shall bear interest at
the Past Due Rate. Notwithstanding the foregoing, the unpaid
principal balance of the Note shall bear interest as provided
in Section 4.05(c) hereof, upon the occurrence of the
circumstances described in such section.
7.
A new section 8.19 is added to the Loan Agreement which shall
read in its entirety as follows:
8.19. Real Estate Sales. Company and its
Subsidiaries shall promptly apply all net proceeds of the sale
of real estate owned by Company or any of its Subsidiaries to
the payment of the Note and the amount of such payment shall
reduce the amount of the Commitment in section 2.01(a) in
inverse order.
8.
Section 9.01, Section 9.04, Section 9.14 and Section 9.15 of
the Loan Agreement are amended to read in their entirety as follows:
9.01. Funded Debt to Net Cash Flow. Permit the
ratio of Funded Debt as of the end of any fiscal quarter to
Net Cash Flow of Pancho's Mexican Buffet, Inc. and its
Subsidiaries for the four quarter period ending as of the end
of the preceding fiscal quarter at any time to be greater than
2.25 to 1.0; or
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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 fiscal year 1998 or
transfer any funds to PMB International, Inc. or its
Subsidiaries in fiscal 1999 or any year thereafter; or
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9.14 Capital Expenditure. Permit the cash paid for
Capital Expenditures on a Consolidated basis to exceed six
hundred fifty thousand dollars ($650,000) per fiscal year.
9.15 Dividends. Pay any Dividends until 12-month
rolling EBITDA exceeds three million dollars ($3,000,000) or
pay any Dividends in excess of one hundred fifty thousand
dollars ($150,000) in the aggregate during any fiscal year of
Company.
9.
A new section 9.16 is added to the Loan Agreement which shall
read as follows:
9.16. EBITDA. Permit trailing three (3) months
EBITDA to be less than the sum of (a) 125% of the amount of
the next scheduled Commitment Reduction and (b) Capital
Expenditures during any 3-month period beginning with the
quarter ended March 31, 1998.
10.
New sections 10.01(j) and Section 10.01(k) are added to the
Loan Agreement which shall read in their entirety as follows:
(j) The failure of Company to promptly apply all
net proceeds from sale of real property of Company or any of
its Subsidiaries to the unpaid balance of the Note; or
(k) The failure of Company to reduce the unpaid
principal balance of the Note to an amount equal to or less
than the amount of the Commitment then in effect.
Except as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment and the letter agreements dated December
16, 1996 and February 11, 1997, the Loan Agreement is ratified and confirmed
and shall remain in full force and effect.
12.
At the time of execution of this Seventh Amendment, Company
shall pay to Bank a fee in the amount of fifteen thousand dollars ($15,000) and
all attorney's fees incurred by Bank.
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13.
The Company represents and warrants to the Bank, with full
knowledge that the Bank is relying on the following representations and
warranties in executing this Seventh Amendment, as follows:
(a) The Company has corporate power and authority to
execute, deliver and perform this Seventh Amendment, and all corporate action
on the part of the Company requisite for the due execution, delivery and
performance of this Seventh Amendment has been duly and effectively taken.
(b) The Loan Agreement and the Loan Documents and each
and every other document executed and delivered in connection with this Seventh
Amendment to which the Company or any of its Subsidiaries is a party constitute
the legal, valid and binding obligations of the Company and any of its
Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms.
(c) This Seventh Amendment does not and will not violate
any provisions of the articles or certificate of incorporation or bylaws of the
Company, or any contract, agreement, instrument or requirement of any
Governmental Authority to which the Company is subject. The Company's execution
of this Seventh Amendment will not result in the creation or imposition of any
lien upon any properties of the Company, other than those permitted by the Loan
Agreement and this Seventh Amendment.
(d) The Company's execution, delivery and performance of
this Seventh Amendment do not require the consent or approval of any other
Person, including, without limitation, any regulatory authority or governmental
body of the United States of America or any state thereof or any political
subdivision of the United States of America or any state thereof.
(e) All financial information previously presented to the
Bank fairly present the financial condition of the Company and its Subsidiaries
as of the date of such information and the results of the operations of the
Company and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP applied on a consistent basis.
(f) The Company has performed and complied with all
agreements and conditions contained in the Loan Agreement required to be
performed or complied with by the Company prior to or at the time of delivery
of this Seventh Amendment.
(g) After giving effect to this Seventh Amendment, no
default or Event of Default exists and all of the representations and
warranties contained in the Agreement and all instruments and documents
executed pursuant thereto or contemplated thereby are true and correct in all
material respects on and as of this date.
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14.
The effectiveness of this Seventh Amendment shall be conditioned on
the receipt by the Bank of each of the following:
(a) Corporate resolutions of Company authorizing the
execution of this Seventh Amendment;
(b) Incumbency certificate of Company;
(c) The fee in the amount of fifteen thousand dollars
($15,000); and
(d) The payment of all attorney's fees incurred by Bank.
15.
Company hereby expressly ratifies, confirms and extends all deed of
trust and mortgage liens and all security interests in favor of Bank and agrees
that each deed of trust lien, mortgage lien and security interest in favor of
Bank shall remain in full force and effect until all indebtedness of Company to
Bank is paid in full and all commitments of Bank to Company have terminated.
16.
Company agrees to pay any and all costs and expenses incurred by Bank
in connection with this Seventh Amendment (including, but not limited to, any
and all appraisal fees, cost of title searches, costs of environmental reports,
recording fees, conveyance fees and reasonable attorneys fees) within ten (10)
days of the date of any invoice for such costs and expenses. Company, at
Company's expense, agrees to promptly execute and deliver to Bank upon request
any and all other and further documents, agreements and instruments as may be
requested by Bank in connection with or relating to this Seventh Amendment and
the Loan Agreement or as may be necessary to correct any omissions or defects
in the documents, agreements or instruments delivered to Bank in connection
therewith.
17.
The parties agree to be bound by the terms and provisions of the
current Arbitration Program of Xxxxx Fargo Bank (Texas), National Association,
which is incorporated by reference herein and is acknowledged as received by
the parties pursuant to which any and all disputes shall be resolved by
mandatory binding arbitration upon the request of any party.
18.
Each of the Guarantors hereby consents to and accepts the terms and
conditions of this Seventh Amendment, agrees to be bound by the terms and
conditions hereof and ratifies and confirms that its continuing Guaranty
Agreement, executed and delivered
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to the Bank as of February 16, 1994, guaranteeing payment of the obligations is
and remains in full force and effect.
19.
This Seventh 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 Seventh Amendment by
facsimile shall be equally as effective as delivery of a manually executed
counterpart of this Seventh Amendment.
20.
This Seventh Amendment shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns.
21.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
Executed to be effective as of December 1, 1997.
PMB ENTERPRISES WEST, INC.
By:/s/ XXXXXX X. XXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxx, Senior Vice President
COMPANY
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION (formerly First
Interstate Bank of Texas, N.A.)
By: /s/ XXXXX XXXXXXX
----------------------------------------
Xxxxx Xxxxxxx, Vice President
BANK
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AGREED TO:
PANCHO'S MEXICAN BUFFET, INC.
By:/s/ W. XXXX XXXXX
----------------------------------------
Name: Xxxx Xxxxx
Title: VP-TREASURER
PMB INTERNATIONAL, INC.
By:/s/ W. XXXX XXXXX
----------------------------------------
Name: Xxxx Xxxxx
Title: VP-TREASURER
PAMEX OF TEXAS, INC.
By:/s/ XXXXXXX XXXXX
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: SEC/TREAS.
GUARANTORS
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PMB ENTERPRISES WEST, INC.
OFFICER'S CERTIFICATE
The undersigned hereby certifies that he is the duty 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 December 1, 1997 (the
"Resolutions"). The Resolutions have 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 Seventh Amendment To Revolving Credit and Term Loan
Agreement dated December 1, 1997 (the "Seventh Amendment") and loan and other
documents required by the Seventh 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 Xxxxxx Xxxxxx /s/ XXXXXX XXXXXX
-------------------------------
Senior Vice President Xxxxxx X. Xxxxxxx /s/ XXXXXX X. XXXXXXX
and Secretary -------------------------------
Assistant Secretary Xxxxxxx Xxxx Xxxxx /s/ XXXXXXX XXXX XXXXX
-------------------------------
IN WITNESS WHEREOF, I have hereunto subscribed my signature effective
as of the 1 day of December, 1997.
/s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx, Secretary
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EXHIBIT A
PAGE 1 OF 3
ARTICLES OF INCORPORATION
OF
PMB ENTERPRISES WEST, INC.
ARTICLE I
The name of the proposed corporation shall be PMB Enterprises West, Inc.
ARTICLE II
The period limited for the duration of the corporation is ninety-nine (99)
years from the date hereof.
ARTICLE III
The nature of the business, or objects, or purposes proposed to be
transacted, promoted, or carried on is:
1. To own, lease, manage, or otherwise operate motels, restaurants,
night clubs, including related facilities thereto;
2. To acquire, purchase, lease, option, own, sell, mortgage, work or
otherwise deal in land and personal property;
3. To engage in any and all activities authorized by the Business
Corporation Act of the State of New Mexico.
ARTICLE IV
1. The amount of total authorized capital stock of this corporation
shall be $25,000 divided into 25,000 shares of common stock of par value of ONE
DOLLAR ($1.00) each.
2. The corporation will not commence business until consideration of the
value of at least $1,000 has been received for the issuance of 1,000 shares of
common stock.
3. Any stock of the corporation may be issued for money, property,
services rendered, labor done, cash advances for the company, or for any other
assets of value in accordance with the action of the Board of Directors, whose
judgment as to value received in return therefor shall be conclusive and said
stock when issued shall be fully paid and non-assessable.
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EXHIBIT A
PAGE 2 OF 3
ARTICLE V
The location of the corporation's initial registered office shall be
0000 0/0 Xxxxxx XX, Xxxxxxxxxxx, Xxx Xxxxxx, 00000, and the name of its
registered agent at such address is Xxx Xxxxxx.
ARTICLE VI
The names and addresses of the persons who are to serve as directors until
the first annual meeting of shareholders or until their successors are elected
and qualified are:
Xxx Xxxxxx Xxxx Xxx Xxxxxx
0000 Xxxxxxxxx Xxxxx, X.X. 0000 Xxxxxxxxx Xxxxx, X.X.
Albuquerque, New Mexico Albuquerque, New Mexico
Xxxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx
Xxxxx Xxxxxxxxx III
0000 Xxx Xxxx
Xx Xxxx, Xxxxx
ARTICLE VII
The management of the corporation shall be vested in a Board of not less
than three nor more than fifteen directors. The number of directors, within
the aforesaid limits, may be fixed from time to time by the by-laws and until
so fixed shall remain at three. The directors shall be chosen annually by the
stockholders at the time and place provided by the by-laws, and shall hold
office for one year and until others are chosen and qualify in their stead.
Power is hereby conferred upon the Board of Directors to make and alter the
by-laws of the corporation.
ARTICLE VIII
Pre-emptive rights shall not be allowed to the holders of the capital
stock of this corporation.
ARTICLE IX
Cumulative voting shall not be allowed.
ARTICLE X
The name and address of the incorporators:
Xxx Xxxxxx
0000 Xxxxxxxxx Xxxxx, X.X.
Albuquerque, New Mexico.
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EXHIBIT A
PAGE 3 OF 3
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 4th day of
May, 1976.
/s/ XXX XXXXXX
-----------------
XXX XXXXXX
STATE OF NEW MEXICO )
) ss.
COUNT OF SANTA FE )
The foregoing instrument was acknowledged before me this 4th day of May,
1976, by XXX XXXXXX.
/s/ XXXXXXX XXXXXX
----------------------
Notary Public
My Commission Expires:
1-10-79
----------------------
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EXHIBIT B
PAGE 1 OF 6
BY-LAWS
of
PMB ENTERPRISES WEST, INC.
ARTICLE 1 - OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at 0000 0/0 Xxxxxx XX, Xxxxxxxxxxx, Xxx Xxxxxx,
00000, in the County of Bernalillo in the State of New Mexico.
SECTION 2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of New Mexico, at such place or places as
the Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II - MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the
notice of the meeting, shall be held at such place, either within or without
the State of New Mexico, and at such time and date as the Board of Directors,
by resolution, shall determine and as set forth in the notice of the meeting.
In the event the Board of Directors fails to so determine the time, date and
place of meeting, the annual meeting of stockholders shall be held at the
registered office of the corporation in New Mexico on April 25.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors
and may transact such other corporate business as shall be stated in the notice
of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place within
or without the State of New Mexico, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. Each stockholder entitled to vote in accordance
with the terms and provisions of the Certificate of Incorporation and these
By-Laws shall be entitled to one vote, in person or by proxy, for each share of
stock entitled to vote held by such stockholder, but no proxy shall be voted
after three years from its date unless such proxy provides for a longer
period. Upon the demand of any stockholder, the vote for directors and upon
any question before the meeting shall be by ballot. All elections for
directors shall be decided by plurality vote; all other questions shall be
decided by majority vote except as otherwise provided by the Certificate of
Incorporation or the laws of the State of New Mexico.
SECTION 4. STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall at least 10 days before each meeting of
stockholders prepare a complete alphabetically addressed list of the
stockholders entitled to vote at the ensuing election, with the number of
shares held by each. Said list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held. Which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be available for inspection at
the meeting.
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EXHIBIT B
PAGE 2 OF 6
SECTION 5. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a meeting, a majority in interest of the
stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the directors
or stockholders entitled to vote. Such request shall state the purpose of the
proposed meeting.
SECTION 7. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten nor
more than fifty days before the date of the meeting.
SECTION 8. BUSINESS TRANSACTED. No business other than that stated in
the notice shall be transacted at any meeting without the unanimous consent of
all the stockholders entitled to vote thereat.
SECTION 9. ACTION WITHOUT MEETING. Except as otherwise provided by the
Certificate of Incorporation, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken in connection with any corporate
action by any provisions of the statutes or the Certificate of Incorporation or
these By-Laws, the meeting and vote of stockholders may be dispensed with, if
all the stockholders who would have been entitled to vote upon the action
if such meeting were held, shall consent in writing to such corporate action
being taken.
ARTICLE III - DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors shall be not less
than three. The directors shall be elected at the annual meeting of stockholders
and each director shall be elected to serve until his successor shall be elected
and shall qualify. The number of directors may not be less than three except
that where all the shares of the corporation are owned beneficially and of
record by either one or two stockholders, the number of directors may be less
than three but not less than the number of stockholders.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified,
at the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until
his successor shall be duly chosen.
SECTION 4. REMOVAL. Any director or directors may be removed either
for or without cause at any time by the affirmative vote of the holders of a
majority of all the shares of stock outstanding and entitled
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to vote, at a special meeting of the stockholders called for the purpose and
the vacancies thus created may be filled, at the meeting held for the purpose
of removal, by the affirmative vote of a majority in interest of the
stockholders entitled to vote.
SECTION 5. INCREASE OF NUMBER. The number of directors may be
increased by amendment of these By-Laws by the affirmative vote of a majority
of the directors, though less than a quorum, or, by the affirmative vote of a
majority in interest of the stockholders, at the annual meeting or at a special
meeting called for that purpose, and by like vote the additional directors may
be chosen at such meeting to hold office until the next annual election and
until their successors are elected and qualify.
SECTION 6. COMPENSATION. Directors shall not receive any stated salary
for their services as directors or as members of committees, but by resolution
of the board a fixed fee and expenses of attendance may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 7. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if prior of such action a written consent
thereto is signed by all members of the board, or of such committee as the case
may be, and such written consent is filed with the minutes of proceedings of
the board or committee.
ARTICLE IV - OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall consist of
a President, a Treasurer, and a Secretary, and shall be elected by the Board of
Directors and shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect a Chairman, one or
more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as
it may deem proper. None of the officers of the corporation need be directors.
The officers shall be elected at the first meeting of the Board of Directors
after each annual meeting. More than two offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such power and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors if one be
elected, shall preside at all meetings of the Board of Directors and he shall
have and perform such other duties as from time to time may be assigned to him
by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the chief executive
officer of the corporation and shall have the general powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or non-election of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the corporation except as
the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts in behalf of the
corporation and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE-PRESIDENT. Each Vice-President shall have such powers
and shall perform such duties as shall be assigned to him by the directors.
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SECTION 6. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request
it, an account of all his transactions as Treasurer and of the financial
condition of the corporation. If required by the Board of Directors, he shall
give the corporation a bond for the faithful discharge of his duties in such
amount and with such surety as the board shall prescribe.
SECTION 7. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his absence or refusal or
neglect to do so, any such notice may be given by any person thereunto directed
by the President, or by the directors, or stockholders, upon whose requisition
the meeting is called as provided in these By-Laws. He shall record all the
proceedings of the meetings of the corporation and of directors in a book to be
kept for that purpose, and shall affix the same to all instruments requiring
it, when authorized by the directors or the President, and attest the same.
SECTION 8. ASSISTANT TREASURERS & ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman or vice-chairman of the board of directors,
or the president or vice-president and the treasurer or an assistant treasurer,
or the secretary of the corporation, certifying the number of shares owned by
him in the corporation. If the corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations, or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights. Where a certificate is countersigned (1) by a
transfer agent other than the corporation or its employee, or (2) by a
registrar other than the corporation or its employee, the signatures of such
officers may be facsimiles.
SECTION 2. LOST CERTIFICATE. New certificates of stock may be issued
in the place of any certificate therefore issued by the corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion,
require the owner of the lost or destroyed certificate or his legal
representatives, to give the corporation a bond, in such sum as they may
direct, not exceeding double the value of the stock, to indemnify the
corporation against it on account of the alleged loss of any such new
certificate.
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SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation shall
be transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other persons as the directors may designate, by who they shall be cancelled,
and new certificates shall thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the day of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividends there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. The corporate seal shall contain the name of the
corporation, and the words "CORPORATE SEAL". Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
SECTION 8. CHECKS. All checks, drafts, or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by officer or officers, agent or agents of the
corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by
these By-Laws to be given, personal notice is not meant unless expressly
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage prepaid, addressed to
the person entitled thereto at his address as it appears on the records of the
corporation, and such notice shall be deemed to have been given on the day of
such mailing. Stockholders not entitled to vote shall not be entitled to
receive notice of any meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions
of any law, or under the provisions of the Certificate of Incorporation of the
corporation or these By-Laws, a waiver thereof in writing signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed proper notice.
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ARTICLE VI - AMENDMENTS
These By-Laws may be altered and repealed and By-Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
thereof is contained in the notice of such special meeting by the affirmative
vote of a majority of the stock issued and outstanding or entitled to vote
thereat, or by the regular meeting of the Board of Directors, at any regular
meeting of the Board of Directors, or at any special meeting of the Board of
Directors, if notice thereof is contained in the notice of such special meeting.
22
CORPORATION RESOLUTION OF
PMB ENTERPRISES WEST, INC.
I, XXXXXX X. XXXXXXX, do hereby certify that I am the Secretary of PMB
ENTERPRISES WEST, INC., a New Mexico Corporation, and that the following is a
full, true and correct copy of resolution adopted by the Board of Directors,
to-wit:
"RESOLVED that PMB Enterprises West, Inc. (the "Corporation")is
authorized to execute the Seventh Amendment to Revolving Credit and
Term Loan Agreement between the Corporation and Xxxxx Fargo Bank
(Texas) National Association in the form attached to these resolutions.
"RESOLVED FURTHER that Xxxxxx Xxxxxx, the president of the
Corporation, Xxxxxx X. Xxxxxxx, the senior vice president of the
Corporation, or Xxxxxxx Xxxx Xxxxx, the assistant secretary of the
Corporation, are each authorized to execute, on behalf of the
Corporation, the Seventh Amendment to Revolving Credit and Term Loan
Agreement in the form attached to these resolutions.
WITNESS MY HAND AND THE SEAL OF PMB ENTERPRISES WEST, INC., December 1, 1997.
/s/ XXXXXX X. XXXXXXX
-----------------------
XXXXXX X. XXXXXXX
SUBSCRIBED and sworn to before me by XXXXXX X. XXXXXXX, Secretary of
PANCHO'S MEXICAN BUFFET, INC. this 1st day of December, 1997.
[Notary Public Seal] /s/ XXXXXXX XXXXX
-----------------------
Notary Public, Tarrant
County, Texas
My commission expires:
5-24-01
-----------------------
STATE OF TEXAS ()
COUNTY OF TARRANT ()
BEFORE ME, a Notary Public in and for said County and State on this
1st day of December, 1997, personally appeared XXXXXX X. XXXXXXX, Secretary of
PANCHO'S MEXICAN BUFFET, INC., a Delaware Corporation, well known to me to be
the officer and person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes therein
expressed, and in the capacity therein stated, and as the act and deed of said
corporation.
[Notary Public Seal] /s/ XXXXXXX XXXXX
-----------------------
Notary Public, Tarrant
County, Texas
My commission expires:
5-24-01
-----------------------
