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Exhibit 10.26
FIRST UNION NATIONAL BANK OF FLORIDA
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
March 26, 1997
Pollo Operations, Inc.
Pollo Tropical, Inc.
Pollo Franchise, Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx Xxxx Xxxx, Chief
Financial Officer
Re: Revolving Credit and Term Loan Agreement dated as of July 13, 1995
(the "Loan Agreement")
Dear Xx. Xxxx:
Reference is made to the above-referenced Loan Agreement dated as of
July 13, 1995, among Pollo Operations, Inc., Pollo Tropical, Inc., Pollo
Franchise, Inc. and First Union National Bank of Florida (the "Loan Agreement").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in Section 1.1 of the Loan Agreement.
You have requested the Bank to agree to certain waivers and
modifications of the Loan Agreement is connection with the Borrower's 1996
audited financial statements to be included in its Annual Report on Form 10-K to
be filed with the Securities and Exchange Commission.
This letter agreement confirms our agreement and understanding, as
follows:
1. DEFINITION OF TANGIBLE NET WORTH. The definition of
"Tangible Net Worth" in Section 1.1 of the Loan Agreement is hereby amended in
its entirety to read as follows:
"Tangible Net Worth" shall mean the net worth of
Borrower, Guarantor and the Subsidiaries determined on a
consolidated basis in accordance with GAAP minus (i) any
write-up of assets subsequent to the date hereof; (ii)
deferred assets other than prepaid insurance and prepaid taxes
(including deferred income taxes, only if classified as a
current asset under GAAP); (iii) patents, copyrights,
trademarks, trade names, noncompete agreements, franchises and
other intangibles; (iv) goodwill or other amounts representing
the excess of the purchase price of assets or stock over the
value assigned thereto on the books of such Person; (v)
unamortized debt discount and expense; (vi) any accounts,
notes or other amounts due from Affiliates; (vii)
capitalization of leasehold acquisition costs, and (viii) any
other amounts categorized as intangibles under GAAP.
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Pollo Operations, Inc. et al
March 26, 1997
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2. TANGIBLE NET WORTH COVENANT. The "Tangible Net Worth"
covenant in paragraph I(c) of Exhibit 5.22 (Other Covenants) of the Loan
Agreement is hereby amended in its entirety to read as follows:
(c) Tangible Net Worth. After December 30, 1996,
maintain a consolidated Tangible Net Worth of not less than
$21,500,000. Further, such Tangible Net Worth as of the close of each
fiscal quarter thereafter shall not be less than the Tangible Net Worth
as of the close of the preceding fiscal quarter plus seventy-five
percent (75%) of the Net Income (but not including any net loss) for
the then ending fiscal quarter.
3. PERMITTED LOSSES COVENANT. Compliance with the
"Permitted Losses" covenant in paragraph 1(e) of Exhibit 5.22 (Other Covenants)
of the Loan Agreement is hereby waived as of December 29, 1996. Notwithstanding
the foregoing, such waiver is effective in this one instance only and is not a
waiver with respect to any date or period subsequent to December 29, 1996.
4. FEE. In consideration of the Lender entering into
this letter, Borrower is paying a fee to the Lender of $10,000.
5. REAFFIRMATION OF GUARANTEES. Each of the undersigned
Guarantors hereby reaffirms its obligations under the Guaranty Agreement
executed by such Guarantor, consents to any and all modifications of the Loan
Agreement occasioned by this letter agreement and agrees that its obligations
under such Guaranty Agreement shall remain in full force and effect after the
date hereof and shall be unaffected by the transactions contemplated by this
letter agreement.
6. NO OTHER MODIFICATIONS. Except as modified
herein, the Loan Agreement and the other Loan Documents referred to therein
shall remain in full force and effect after the date hereof unless and until
modified or amended in accordance with the terms thereof.
If the foregoing correctly states our agreement and
understanding, kindly so indicate by signing and returning the enclosed copy of
this letter agreement in the spaces provided for the signatures of your duly
authorized officers.
Very truly yours,
FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Vice President
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Pollo Operations, Inc. et al
March 26, 1997
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POLLO OPERATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman Of The Board
POLLO TROPICAL, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman Of The Board
POLLO FRANCHISE, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman Of The Board
