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EXHIBIT 10(s)
THIRD AMENDMENT TO REVOLVING
CREDIT AND TERM AGREEMENT
This Third Amendment To Revolving Credit and Term Loan Agreement (this
"Third Amendment") is made by and among PMB Enterprises West, Inc., a New
Mexico corporation, and First Interstate Bank of Texas, N.A.
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; and
WHEREAS, the parties entered into that one certain Second Amendment to
Revolving Credit and Term Loan Agreement dated May 9, 1995; and
WHEREAS, the parties desire to amend the Loan Agreement in certain
respects.
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 Net Cash Flow in Article I is amended to read in its
entirety as follows:
"Net Cash Flow" shall mean at any time the sum of Consolidated
Net Income, depreciation, amortization and sixty six percent (66%) of
the restructuring charge incurred in June 1995 in the total amount of
$7,572,000 less an amount equal to four (4) times the aggregate amount
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of the most recent quarterly Dividend declared by the Board of
Directors of Company.
2.
New Sections 6.02(g), 6.02(h), 6.02(i), 6.02(j) and 6.02(k) are added
to the Loan Agreement which shall read in their entirety as follows:
(g) Deeds of Trust. Deeds of trust and mortgages covering all
real property owned by Company or any of its Affiliates;
(h) Environmental Indemnity Agreement. Environmental Indemnity
Agreement relating to all real property owned by Company or any of its
Affiliates;
(i) Insurance Policies. Copies of insurance policies covering all
real and personal property owned by Company or any of its Affiliates reflecting
Bank as mortgagee;
(j) Security Agreements. Security Agreements covering all assets
owned by Company and each of its Affiliates; and
(k) Financing Statements. Financing statements covering all
assets of Company and each of its Affiliates.
3.
Section 9.01 of the Loan Agreement is amended to read in its entirety
as follows:
9.01 Funded Debt to Net Cash Flow. Permit the ratio of Funded
Debt as of the end of any calendar month to Net Cash Flow of Pancho's
Mexican Buffet, Inc. and its Subsidiaries for the 12-month period then
ending to be greater than 2.8 to 1.0 at any time on or before December
31, 1995 or to be greater than 2.5 to 1.0 at any time after December
31, 1995.
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4.
Company agrees to deliver to Bank each of the following at or prior to
the time of execution of this Third Amendment, all in form and substance
satisfactory to Bank:
(1) Deeds of Trust. Deeds of trust and mortgages covering all
real property owned by Company or any of its Affiliates;
(2) Environmental Indemnity Agreement. Environmental Indemnity
Agreement relating to all real property owned by Company or any of its
Affiliates;
(3) Environmental Questionnaires. Environmental questionnaire
relating to all real property owned by Company or any of its Affiliates.
(4) Insurance Policies. Copies of insurance policies covering all
real and personal property owned by Company or any of its Affiliates reflecting
Bank as mortgagee;
(5) Security Agreements. Security Agreements covering all assets
owned by Company and each of its Affiliates;
(6) Financing Statements. Financing statements covering all
assets of Company and each of its Affiliates; and
(7) Resolutions of Company and its Affiliates. Resolutions
authorizing the execution of this Third Amendment and each deed of trust,
mortgage, security agreement and financing statement required under the terms
of the Loan Agreement and an incumbency certificate.
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4.
New Sections 8.16, 8.17 and 8.18 are added to the Loan Agreement which
shall read in their entirety as follows:
8.16 Appraisals. Company shall furnish to Bank appraisals
in form and from appraisers satisfactory to Bank relating to all real
property owned by Company or any of its Affiliates on or before
December 31, 1995.
8.17 Paid Tax Receipts. Company shall furnish to Bank
annually paid tax receipts or other evidence satisfactory to Bank
reflecting that all ad valorem taxes with respect to all real property
owned by Company or any of its Affiliates have been paid in full.
8.18 Environmental Reports. At the request of Bank,
Company, at the expense of Company, shall from time to time promptly
furnish to Bank environmental reports in form satisfactory to Bank
relating to real property owned by Company or any of its subsidiaries.
5.
Except as amended by the First Amendment, the Second Amendment and
this Third Amendment, the Loan Agreement is ratified and confirmed and shall
remain in full force and effect.
6.
Borrower agrees to pay any and all costs and expenses incurred by Bank
in connection with this Third 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. Borrower, at
Borrower'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 Third 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.
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7.
This Third Amendment shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.
8.
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 September 29, 1995.
PMB ENTERPRISES WEST, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Senior Vice
President
BORROWER
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx, Assistant Vice
President
BANK
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