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Exhibit 10(j)
FIRST AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered
into as of January 30, 1995, by and among UNO RESTAURANTS, INC., a
Massachusetts corporation (the "Borrower"), UNO FOODS INC., a Massachusetts
corporation "UFI"), PIZZERIA UNO CORPORATION, a Delaware corporation ("PUC"),
UNO RESTAURANT CORPORATION, a Delaware corporation ("URC"), URC HOLDING
COMPANY, INC., a Delaware corporation ("UHC" and, together with UFI, PUC, URC
and the Borrower, hereinafter referred to collectively, as the "Loan Parties"),
FLEET BANK OF MASSACHUSETTS, N.A., a national banking association ("Fleet"),
THE FIRST NATIONAL BANK OF BOSTON, a national banking association ("FNBB") and
MELLON BANK, N.A., a national banking association ("Mellon"), and FLEET BANK OF
MASSACHUSETTS, N.A., as Agent for the Banks referred to below (Fleet, together
with its successors and assigns in such capacity, the "Agent").
RECITALS
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WHEREAS, the Loan Parties, the Agent and the Banks have entered into
that certain Revolving Credit and Term Loan Agreement dated as of December 9,
1994 (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, the Loan Parties, the Agent and the Banks desire to amend
certain provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereby agree as follows:
Section 1. Amendments to Credit Agreement.
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1.1. Section 1.1 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by deleting the definition "Banks" appearing therein in
its entirety and substituting therefor the following:
"`BANKS' shall mean, Fleet, FNBB, Mellon, and their respective
successors and assigns."
1.2. Section 1.1 of the Credit Agreement is hereby further amended, as
of the date of this Amendment, by adding thereto the following new defined
term, such term to be inserted in the appropriate alphabetical order:
"`FEDERAL FUNDS RATE,' shall mean, for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day
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that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent."
1.3. Section 1.2 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by deleting such Section in its entirety and
substituting therefor the following:
"Section 1.2. ACCOUNTING TERMS. All accounting terms used and not
defined in this Agreement shall be construed in accordance with GAAP
consistently applied, and all financial data required to be delivered
hereunder shall be prepared in accordance with such principles. If any
changes in accounting principles are hereafter occasioned by promulgation
of rules, regulations, pronouncements or opinions by or are otherwise
required by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions), and any of such changes results in a
change in the method of calculation of, or affect the results of
calculation of, any of the financial covenants, standards or terms found
herein, then the parties hereto agree to enter into and diligently pursue
negotiations in order to amend such financial covenants, standards or terms
so as to reflect fairly and equitably such changes, with the desired result
that the criteria for evaluating the financial condition and results of
operations of URC and its Subsidiaries shall be the same after such changes
as if such changes had not been made. If the parties are unable to agree
upon the amendments to any such financial covenants, standards or terms,
the parties agree to submit any remaining disputes to an independent third-
party accounting firm (having no substantial relationship with any party)
of national recognition selected by such parties for a determination of the
appropriate amendments to such financial covenant, standard or term, which
determination shall be binding upon the parties."
1.4. Section 2.2 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by deleting paragraph (e) of such Section in its
entirety and substituting therefor the following:
"(e) Notwithstanding the foregoing provisions of this Section 2.2, the
Borrower shall not be required to provide notice to the Agent of Advances
which are made in accordance with "target balance" services provided by the
Agent (each, a "Target Balance Advance"), and the minimum borrowing amounts
established under Section 2.2(a) shall not apply to such Target Balance
Advances. All Target Balance Advances shall be Prime Rate Loans unless
otherwise agreed by the Borrower, the Agent and the other Banks. The Agent
shall, to the extent practicable, notify each Bank on the date of any
Target Balance Advance of such Bank's Commitment Percentage of such
Advance. Provided that the Agent has notified the Banks prior to 3:00 p.m.
on the date of such Target Balance Advance, each Bank shall make available
to the Agent before the close of business on such date, at the office of
the Agent specified in Section 15.3, in immediately available funds, such
Bank's Commitment Percentage of the Target Balance Advance. In the event
the Agent shall provide such notice after 3:00 p.m. but before the close of
business on the date of any Target Balance Advance, the Banks shall furnish
to the Agent their respective
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Commitment Percentages of such Target Balance Advance prior to 11:00 a.m.
on the following Business Day, together with one days' interest thereon
calculated at the Federal Funds Rate (it being understood that as
between the Borrower and the Banks, interest shall commence to accrue on
the date of funding any Target Balance Advance on the full amount so
funded, notwithstanding the timing of funding by the Banks to the Agent)."
1.5. Section 2.12 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by adding thereto a new paragraph (g) as follows:
"(g) To the extent that any applicable law (including but not limited to
applicable laws pertaining to fraudulent conveyance or fraudulent transfer)
would render the full amount of any Loan Party's obligations under this
Section 2.12 invalid or unenforceable, such Loan Party's obligations
hereunder shall be limited to the maximum amount which does not result in
such invalidity or unenforceability."
1.6. Section 3.2 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by deleting such Section in its entirety and
substituting therefor the following:
"Section 3.2. CONDITIONS TO ALL ADVANCES. The Banks' obligation to make
any Loan pursuant to this Agreement, or to continue any Loan as, or convert
any Loan to, a LIBOR Rate Loan, shall be subject to compliance by each of
the Loan Parties with its respective agreements contained in this Agreement
and each other Bank Agreement, and to the satisfaction, at or before the
making, continuation or conversion of such Loan, of all of the following
conditions precedent:
(a) The representations and warranties herein and those made by
or on behalf of the Loan Parties and the Affiliate Guarantors in any other
Bank Agreement shall be correct in all material respects as of the date on
which any Loan is made, with the same effect as if made at and as of such
time (except as to transactions permitted hereunder and except that the
references in Article 5 to the 1994 Financial Statements shall be deemed
to refer to the most recent annual financial statements furnished to the
Banks pursuant to Section 6.2 hereof);
(b) On the date of making, continuing or converting any Loan as
described above, there shall exist no Default; and
(c) The making, continuation or conversion of the requested
Loan as described above, shall not be prohibited by any law or
governmental order or regulation applicable to the Banks, the Agent or the
Borrower and all necessary consents, approvals and authorizations of any
Person (other than the Banks) for any such Loan shall have been obtained.
The request by the Borrower for the making, continuation or conversion
of each Loan as provided above, and the acceptance by the Borrower of each
such Loan, shall be
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deemed a representation and warranty by the Borrower that the
conditions specified above in this Section 3.2 have been satisfied."
1.7. Section 9.1 of the Credit Agreement is hereby amended, as of the
date of this Amendment, by deleting paragraph (f) thereof in its entirety and
substituting therefor the following:
"(f) other Indebtedness in an aggregate amount not to exceed $5,000,000
at any time, so long as on the date URC or any Subsidiary becomes liable
with respect to such other Indebtedness and immediately after giving effect
thereto, and to the concurrent retirement of any other Indebtedness, there
shall be no Default hereunder; and"
1.8. Section 9.2 of the Credit Agreement is hereby amended, as of the date
of this Amendment, as follows: (i) by deleting the word "and" appearing at the
end of paragraph (e) of such Section; (ii) by deleting the period appearing at
the end of paragraph (f) of such Section and substituting therefor the phrase
"; and"; and (iii) by adding thereto a new paragraph (g) as follows:
"(g) Liens in favor of the Agent for the benefit of the Banks securing
the Bank Obligations."
1.9. Section 9.4 of the Credit Agreement is hereby amended as of the date
of this Amendment, by deleting the reference to Section 10.9 of the Senior Note
Purchase Agreement appearing therein and substituting therefor reference to
Section 10.9(a) of the Senior Note Purchase Agreement.
Section 2. EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective as of the date hereof upon receipt by the Agent of a counterpart
hereof executed by the Required Banks and each of the parties hereto.
Section 3. LOAN PARTIES' REPRESENTATIONS AND WARRANTIES. In order to
induce the Agent and the Banks to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, the Loan Parties hereby
represent, warrant and agree that (a) all representations and warranties
contained in Article 5 of the Credit Agreement are true, correct and complete
in all material respects on and as of the date hereof to the same extent as
though made on and as of this date, except to the extent that such
representations and warranties specifically relate to an earlier date, in which
event they are true, correct and complete in all material respects as of such
earlier date; and (b) no event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment which
would constitute a Default or an Event of Default.
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Section 4. Miscellaneous.
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4.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(a) On and after the date of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the Bank Agreements to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall
mean and be a reference to the Credit Agreement, as amended by this
Amendment;
(b) Except as specifically amended by this Amendment, the
Credit Agreement and the other Bank Agreements shall remain in full force
and effect and are hereby ratified and confirmed; and
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provisions of, or operate as a waiver of any right, power or remedy of
Agent or any Bank under, the Credit Agreement or any of the other Bank
Agreements.
4.2 FEES AND EXPENSES. The Loan Parties acknowledges that all costs,
fees and expenses incurred by the Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of the Loan Parties.
4.3 EXECUTION IN 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 an
original, but all such counterparts taken together shall constitute but one and
the same instrument.
4.4 HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes or be given any substantive
effect.
4.5 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED TO BE MADE UNDER,
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
[END OF TEXT]
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IN WITNESS WHEREOF, the Loan Parties, the Agent and the Banks have caused
this Amendment to be executed by their duly authorized officers as of the date
set forth above.
UNO RESTAURANT CORPORATION
By:______________________________
Name: Robert M. Brown
Title: Senior Vice President
URC HOLDING COMPANY, INC.
By:______________________________
Name: Robert M. Brown
Title: Senior Vice President
UNO RESTAURANTS, INC.
By:______________________________
Name: Robert M. Brown
Title: Senior Vice President
UNO FOODS INC.
By:______________________________
Name: Robert M. Brown
Title: Senior Vice President
PIZZERIA UNO CORPORATION
By:______________________________
Name: Robert M. Brown
Title: Senior Vice President
FLEET BANK OF MASSACHUSETTS, N.A.,
as Agent
By:______________________________
Name: Barrie K. King
Title: Vice President
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THE FIRST NATIONAL BANK OF BOSTON
By:______________________________
Name:
Title:
MELLON BANK, N.A.
By:______________________________
Name:
Title:
FLEET BANK OF MASSACHUSETTS, N.A.,
By:______________________________
Name: Barrie K. King
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By:______________________________
Name:
Title:
MELLON BANK, N.A.
By:______________________________
Name:
Title:
FLEET BANK OF MASSACHUSETTS, N.A.
By:______________________________
Name: Barrie K. King
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.,
as Agent
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By:______________________________
Name: Barrie K. King
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By:______________________________
Name:
Title:
MELLON BANK, N.A.
By:______________________________
Name:
Title:
FLEET BANK OF MASSACHUSETTS, N.A.
By:______________________________
Name: Barrie K. King
Title: Vice President
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============================================================================
SECOND AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of November 7, 1995
Among
UNO RESTAURANTS, INC.
as Borrower
UNO FOODS, INC.,
PIZZERIA UNO CORPORATION,
URC HOLDING COMPANY, INC.
and
UNO RESTAURANT CORPORATION
as Guarantors
and
FLEET BANK OF MASSACHUSETTS, N.A.,
THE FIRST NATIONAL BANK OF BOSTON
and
MELLON BANK, N.A.,
as the Banks
and
FLEET BANK OF MASSACHUSETTS, N.A.,
as Agent
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SECOND AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT is
entered into as of November 7, 1995 by and between UNO RESTAURANTS, INC. a
Massachusetts corporation (the "Borrower"), UNO FOODS, INC., a Massachusetts
corporation ("UFI"), PIZZERIA UNO CORPORATION, a Delaware corporation ("PUC"),
UNO RESTAURANT CORPORATION, a Delaware corporation, ("URC"), URC HOLDING
COMPANY, INC. ("UHC" and, together with UFI, PUC, URC and the Borrower,
hereinafter referred to collectively as the "Loan Parties"), FLEET BANK OF
MASSACHUSETTS, N.A., a national banking association, THE FIRST NATIONAL BANK OF
BOSTON, a national banking association, and MELLON BANK, N.A., a national
banking association, as Banks, and FLEET BANK OF MASSACHUSETTS, N.A., a
national banking association, as Agent (the "Agent").
Recitals
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The Loan Parties, the Banks and the Agent are parties to a Revolving
Credit and Term Loan Agreement dated as of December 9, 1994, as amended (the
"Credit Agreement") and desire to amend the Credit Agreement in various
respects. All capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Credit Agreement.
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Section 5, the Loan Parties, the Banks and the Agent
hereby amend the Credit Agreement, as follows:
Section 1. DEFINITIONS. Section 1.1 of the Credit Agreement is
hereby amended by adding a new definition of "Permitted Stock Repurchase" in
alphabetical order, as follows:
"PERMITTED STOCK REPURCHASE" shall mean the repurchase by URC
of shares of its common stock from time to time during the period from
October 30, 1995 through April 25, 1996 in an aggregate amount required
in order to complete the stock repurchases authorized by resolutions
adopted by the Board of Directors of URC on October 26, 1995 and at
prices not exceeding the price approved by the Board of Directors
therein.
Section 2. AMENDMENT OF COVENANTS. Article 7 of the Credit
Agreement is hereby amended by deleting Sections 7.1 and 7.3 in their entirety
and substituting the following therefor, respectively:
Section 7.1 CONSOLIDATED TANGIBLE NET WORTH. URC will at
all times maintain Consolidated Tangible Net Worth in an amount not
less than the sum of (i) $52,264,000, PLUS (ii) 50% of the sum of
Consolidated Net Income (0% in the case of a deficit) for each fiscal
quarter ending after October 2, 1994, PLUS (iii) 100% of the net
proceeds received by URC in connection with any offering of its capital
stock LESS (iv) the amounts expended by URC on the Permitted Stock
Repurchase.
Section 7.3. RATIO OF CONSOLIDATED LIABILITIES TO CONSOLIDATED
TANGIBLE NET WORTH. URC shall at all times maintain a ratio of
Consolidated Liabilities to Consolidated Tangible Net Worth of not
more than 1.0 to 1.0.
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Section 3. WAIVER OF COVENANT DEFAULTS. The Banks hereby waives
the failure of the Loan Parties to satisfy the requirements of Section 7.6 of
the Credit Agreement for the fiscal year ended September 30, 1995 as a result
of URC and its Subsidiaries incurring capital expenditures of greater than
$39,000,000 for such fiscal year; provided that for such fiscal year URC and
its Subsidiaries shall not have made or incurred consolidated Capital
Expenditures in excess of $40,200,000.
Section 4. AMENDMENT OF EXHIBIT B. EXHIBIT B to the Credit
Agreement is hereby deleted in its entirety and the new EXHIBIT B attached
hereto is substituted therefor.
Section 5. EFFECTIVENESS: CONDITIONS TO EFFECTIVENESS. This Second
Amendment to Revolving Credit and Term Loan Agreement shall become effective as
of October 31, 1995 upon execution hereof by the parties hereto and
satisfaction of the following conditions:
(a) OFFICERS' CERTIFICATE. The Loan Parties shall have
delivered to the Agent an Officers' Certificate in the form of EXHIBIT
A hereto.
(b) ACKNOWLEDGMENT OF AFFILIATE GUARANTORS. The Loan Parties
shall have delivered to the Agent an Acknowledgment of Affiliate
Guarantors in the form of EXHIBIT C hereto.
Section 6. REPRESENTATIONS AND WARRANTIES: NO DEFAULT. The Loan
Parties hereby confirm to the Banks the representations and warranties of the
Loan Parties set forth in Article 5 of the Credit Agreement (as amended hereby)
as of the date hereof, as if set forth herein in full. The Loan Parties hereby
certify that, after giving effect hereto, no Default exists under the Credit
Agreement.
Section 7. MISCELLANEOUS. The Loan Parties, jointly and severally,
agree to pay on demand all the Agent's reasonable expenses in preparing,
executing and delivering this Second Amendment to Revolving Credit and Term
Loan Agreement, and all related instruments and documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of the Agent's
special counsel, Goodwin, Procter & Hoar. This Second Amendment to Revolving
Credit and Term Loan Agreement shall be a Bank Agreement and shall be governed
by and construed and enforced under the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the Loan Parties, the Banks and the Agent have
caused this Second Amendment to Revolving Credit and Term Loan Agreement to be
executed by their duly authorized officers as of the date first set forth
above.
UNO RESTAURANTS, INC.
By: ______________________________
Name: Robert M. Brown
Title: Senior Vice President
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UNO FOODS, INC.
By: ______________________________
Name: Robert M. Brown
Title: Senior Vice President
PIZZERIA UNO CORPORATION
By: ______________________________
Name: Robert M. Brown
Title: Senior Vice President
URC HOLDING COMPANY, INC.
By: ______________________________
Name: Robert M. Brown
Title: Senior Vice President
UNO RESTAURANT CORPORATION
By: ______________________________
Name: Robert M. Brown
Title: Senior Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By: ______________________________
Name: Barrie K. King
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: ______________________________
Name: Timothy G. Clifford
Title: Vice President
MELLON BANK, N.A.
By: ______________________________
Name: Joseph T. McDonald, Jr.
Title: Vice President
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FLEET BANK OF MASSACHUSETTS, N.A.
as Agent
By: ______________________________
Name: Barrie K. King
Title: Vice President