================================================================================
THE MARCUS CORPORATION
THIRD SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of April 1, 2002
Re: $54,000,000 7.66% Series D Senior Notes, Tranche A,
due April 1, 2009
and
$21,000,000 7.93% Series D Senior Notes, Tranche B,
due April 1, 2012
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THIRD SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of
April 1, 2002
To the Purchasers named in
Schedule A hereto
Ladies and Gentlemen:
This Third Supplement to Note Purchase Agreements (the "Third
Supplement") is between The Marcus Corporation, a Wisconsin corporation (the
"Company"), whose address is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000, and the institutional investors named on Schedule A attached
hereto (the "Purchasers").
Reference is hereby made to those certain Note Purchase Agreements
dated as of October 25, 1996 (the "Note Agreements") between the Company and the
purchasers listed on Schedule A thereto. All capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Note Agreements.
Reference is further made to Section 4.11 thereof which requires that, prior to
the delivery of any Additional Notes, the Company and each Additional Purchaser
shall execute and deliver a Supplement.
The Company hereby agrees with you as follows:
1. The Company has authorized the issue and sale of $54,000,000
aggregate principal amount of its 7.66% Series D Senior Notes, Tranche A due
April 1, 2009 (the "Tranche A Notes") and $21,000,000 aggregate principal amount
of its 7.93% Series D Senior Notes, Tranche B due April 1, 2012 (the "Tranche B
Notes" and together with the Tranche A Notes, the "Series D Notes"). The Series
D Notes, together with the Series A Notes initially issued pursuant to the Note
Agreements and each Series of Additional Notes, including the Series B Notes
issued under the First Supplement to Note Purchase Agreements dated as of May
15, 1998 and the Series C Notes issued under the Second Supplement to Note
Purchase Agreements dated as of May 1, 1999, which may from time to time be
issued pursuant to the provisions of Section 2.2 of the Note Agreements, are
collectively referred to as the "Notes" (such term shall also include any such
notes issued in substitution therefor pursuant to Section 13 of the Note
Agreements). The Tranche A Notes and the Tranche B Notes shall be substantially
in the forms set out in Exhibit 1 and Exhibit 2 hereto, respectively, with such
changes therefrom, if any, as may be approved by you and the Company.
2. Subject to the terms and conditions hereof and as set forth in the
Note Agreements and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to you, and you
agree to purchase from the Company, Series D Notes in the principal amount set
forth opposite your name on Schedule A hereto at a price of 100% of the
principal amount thereof on the closing date hereafter mentioned.
3. Delivery of the $75,000,000 in aggregate principal amount of the
Series D Notes will be made at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, against payment therefor in Federal Reserve or
other funds current and immediately available at the principal office of Bank
One Milwaukee, N.A., 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (ABA
Number 075-0000-19) for credit to the First American Finance Corporation
Account, Account Number 000-0000-00 with telephonic confirmation to Xx. Xxxxxx
Xxxxxx at (000) 000-0000 in the amount of the purchase price at 11:00 A.M.,
Milwaukee, Wisconsin time, on April 2, 2002 or such later date (not later than
April 4, 2002) as shall mutually be agreed upon by the Company and the
Purchasers of the Series D Notes (the "Closing").
4. (a) Required Prepayments.
(i) Tranche A Notes. On April 1, 2005 and on each
April 1 thereafter to and including April 1, 2008, the Company
will prepay $10,800,000 principal amount (or such lesser
principal amount as shall then be outstanding) of the Tranche
A Notes at par and without payment of the Make-Whole Amount or
any premium. The entire remaining principal amount of the
Tranche A Notes shall become due and payable on April 1, 2009.
For purposes of this Section 4(a)(i), any prepayment of less
than all of the outstanding Tranche A Notes pursuant to
Section 4(c) shall be deemed to be applied first to the amount
of principal scheduled to be repaid on April 1, 2009, and then
to the remaining scheduled principal payments, if any, in
inverse chronological order.
(ii) Tranche B Notes. On April 1, 2006 and on each
April 1 thereafter to and including April 1, 2011, the Company
will prepay $3,000,000 principal amount (or such lesser
principal amount as shall then be outstanding) of the Tranche
B Notes at par and without payment of the Make-Whole Amount or
any premium. The entire remaining principal amount of the
Tranche B Notes shall become due and payable on April 1, 2012.
For purposes of this Section 4(a)(ii), any prepayment of less
than all of the outstanding Tranche B Notes pursuant to
Section 4(c) shall be deemed to be applied first to the amount
of principal scheduled to be repaid on April 1, 2012, and then
to the remaining scheduled principal payments, if any, in
inverse chronological order.
(b) Application of Prepayments. In the event of a purchase of
the Series D Notes pursuant to Section 8.5 of the Note Agreements or a
Partial Redemption of the Series D Notes all required prepayments on
the Series D Notes shall be adjusted as provided in Section 8.1(c) of
the Note Agreements.
(c) Optional Prepayments. The Series D Notes are subject to
prepayment at the option of the Company in the manner and with the
effect set forth in Section 8.2 of the Note Agreements.
(d) Allocation of Partial Prepayments. In the case of each
partial prepayment of the Series D Notes pursuant to the provisions of
Section 8.2 of the Note Agreements,
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the principal amount of the Series D Notes to be prepaid shall be
allocated among all of the Notes of such Series at the time outstanding
in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof. In the case of each required prepayment of
the Series D Notes pursuant to Section 4(a), the principal amount of
the Tranche to be prepaid shall be allocated among all of the Notes of
such Tranche at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof.
(e) Make-Whole Amount for Series D Notes. The term "Make-Whole
Amount" means, with respect to any Series D Note of any Tranche, an
amount equal to the excess, if any, of the Discounted Value of the
Remaining Scheduled Payments with respect to the Called Principal of
such Series D Note of such Tranche over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be less
than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Series D Note of
any Tranche, the principal of such Series D Note of such Tranche that
is to be prepaid pursuant to Section 8.2 of the Note Agreements or has
become or is declared to be immediately due and payable pursuant to
Section 12.1 of the Note Agreements, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Series D Note of any Tranche, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called Principal
from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted financial
practice and at a discount factor (applied on the same periodic basis
as that on which interest on the Series D Note of such Tranche is
payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Series D Note of any Tranche, 0.50% over the yield to
maturity implied by (i) the yields reported, as of 10:00 A.M. (New York
City time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal, on the display designated as
"PX-1" on the Bloomberg Financial Markets Services Screen (or such
other display as may replace PX-1 of the Bloomberg Financial Markets
Services Screen) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date, or (ii) if such yields are not reported as
of such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to
such Called Principal, in Federal Reserve Statistical Release H. 15
(519) (or any comparable successor publication) for actively traded
U.S. Treasury securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date. Such implied yield will be determined, if necessary, by (a)
converting U.S. Treasury xxxx quotations to bond-equivalent yields in
accordance with accepted financial practice and (b) interpolating
linearly between (1) the actively traded U.S. Treasury security with
the maturity closest to and greater than the Remaining
-3-
Average Life and (2) the actively traded U.S. Treasury security with
the maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Series D Note of any Tranche, all payments of
such Called Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no payment of
such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Series D Note of
such Tranche, then the amount of the next succeeding scheduled interest
payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2 of the Note Agreements or 12.1 of the Note
Agreements.
"Settlement Date" means, with respect to the Called Principal
of any Series D Note of any Tranche, the date on which such Called
Principal is to be prepaid pursuant to Section 8.2 of the Note
Agreements or has become or is declared to be immediately due and
payable pursuant to Section 12.1 of the Note Agreements, as the context
requires.
5. The obligation of each Purchaser to purchase and pay for the Series
D Notes to be sold to such Purchaser at the Closing is subject to the
fulfillment to such Purchaser's satisfaction, prior to the Closing, of the
conditions set forth in Section 4 of the Note Agreements, and to the following
additional conditions:
(a) Except as supplemented by the representations and
warranties set forth in Exhibit A hereto, each of the representations
and warranties of the Company set forth in Section 5 of the Note
Agreements shall be correct as of the date of Closing and the Company
shall have delivered to each Purchaser an Officer's Certificate, dated
the date of the Closing certifying that such condition has been
fulfilled.
(b) Contemporaneously with the Closing, the Company shall sell
to each Purchaser, and each Purchaser shall purchase, the Notes to be
purchased by such Purchaser at the Closing as specified in Schedule A.
(c) Private Placement Numbers shall have been obtained for
each Tranche of the Series D Notes.
6. The Company hereby covenants and agrees that so long as the Series
D Notes shall remain outstanding, the definition of "Debt" set forth in the Note
Agreements shall read as
-4-
follows for purposes of any determination under the Note Agreements (including
Section 10.2, 10.3 and 10.4 of the Note Agreements):
"'Debt' means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of
a type described in any of clause (a) through (d) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP."
7. Each Purchaser represents and warrants that the representations and
warranties set forth in Section 6 of the Note Agreements are true and correct on
the date hereof with respect to the Series D Notes purchased by such Purchaser.
8. The Company and each Purchaser agrees to be bound by and comply
with the terms and provisions of the Note Agreements for the benefit of the
holders of the Series D Notes as fully and as completely as if each Purchaser
were an original signatory to the Note Agreements.
9. The Company agrees that, in addition to the payment by the Company
of certain costs and expenses set forth in Section 15.1 of the Note Agreements,
the Company will reimburse one Purchaser from each tranche of the Series D Notes
for the initial and annual fees (as in effect on the date of Closing) imposed by
the National Association of Insurance Commissioners in connection with obtaining
and maintaining a rating for the Series D Notes.
-5-
The execution hereof shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this agreement may be executed in
any number of counterparts, each executed counterpart constituting an original
but all together only one agreement.
THE MARCUS CORPORATION
By
------------------------------------
Its:________________________________
Printed Name:_______________________
-6-
Accepted as of the date first written above
[VARIATION]
By
------------------------------------
Its:________________________________
Printed Name:_______________________
-7-
INFORMATION RELATING TO PURCHASERS
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
ING LIFE INSURANCE AND ANNUITY COMPANY A $15,000,000
c/o ING Investment Management LLC
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
The Bank of New York
ABA #000000000
BFN: IOC566
Attn: P&I Department
Ref: ING Life Insurance & Annuity Company
Account #216101 and PPN 56633# AG 8
Notices
All notices and communications with respect to payments and written confirmation
of each such payment to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Securities Accounting
Fax: (000) 000-0000
All other notices and communications to be addressed as first provided above
with a copy of all such notices and communications to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Private Placements
Phone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
SCHEDULE A
(to Note Purchase Agreement)
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
NORTHERN LIFE INSURANCE COMPANY A $10,000,000
c/o ING Investment Management LLC
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
BK of NYC
IOC 566 - INT'L CUSTODY
ABA #000000000
Ref: Northern Life Insurance Company
Account #187036 and PPN 56633# AG 8
Notices
All notices and communications with respect to payments and written confirmation
of each such payment to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Securities Accounting
Fax: (000) 000-0000
All other notices and communications to be addressed as first provided above
with a copy of all such notices and communications to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Private Placements
Phone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-2
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
NATIONWIDE LIFE INSURANCE COMPANY A $4,500,000
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
The Bank of New York
ABA #000-000-000
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attention: X&X Xxxxxxxxxx
XXX 00000# AG 8
Security Description: The Marcus Corporation, Series D Senior Notes,
Tranche A, due April 1, 2009
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
P. O. Box 19266
Attn: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
With a copy to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-05)
Attn: Investment Accounting
Xxxxxxxx, Xxxx 00000-0000
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-3
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
NATIONWIDE LIFE AND ANNUITY INSURANCE A $4,500,000
COMPANY
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
The Bank of New York
ABA #000-000-000
BNF: IOC566
F/A/O Nationwide Life and Annuity Insurance Company
Attention: X&X Xxxxxxxxxx
XXX 00000# AG 8
Security Description: The Marcus Corporation, Series D Senior Notes,
Tranche A, due April 1, 2009
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life and Annuity Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X. X. Xxx 00000
Attn: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
With a copy to:
Nationwide Life and Annuity Insurance Company
Attn: Investment Accounting
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Attn: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-4
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
SCOTTSDALE INSURANCE COMPANY A $1,000,000
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
The Bank of New York
ABA #000-000-000
BNF: IOC566
F/A/O Scottsdale Insurance Company
Attention: X&X Xxxxxxxxxx
XXX 00000# AG 8
Security Description: The Marcus Corporation, Series D Senior Notes,
Tranche A, due April 1, 2009
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Scottsdale Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X. X. Xxx 00000
Attn: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
With a copy to:
Scottsdale Insurance Company
Attn: Investment Accounting
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-5
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
PRINCIPAL LIFE INSURANCE COMPANY A $7,000,000
c/o Principal Capital Management, LLC $1,000,000
000 Xxxxx Xxxxxx x0,000,000
Xxx Xxxxxx, Xxxx 00000-0000 $ 500,000
$ 500,000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, by 12:00 p.m., New York City time
(identifying each payment as "The Marcus Corporation, Series D Senior Notes,
Tranche A, due April 1, 2009, PPN 56633# AG 8, principal, premium or interest")
to:
ABA #000000000
Xxxxx Fargo Bank Iowa, N.A.
7th and Xxxxxx Xxxxxxx
Xxx Xxxxxx, Xxxx 00000
For credit to Principal Life Insurance Company
Account Xx. 0000000000
XXX XXXXX (X) B0064801()
All notices with respect to payments to:
Principal Capital Management, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting - Securities
Telefacsimile: (000) 000-0000
Confirmation: (000) 000-0000
All other notices and communications to:
Principal Capital Management, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Department - Securities
Telefacsimile: (000) 000-0000
Confirmation: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-6
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
AMERICAN FAMILY LIFE INSURANCE COMPANY A $3,000,000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Telefacsimile Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
ABA #000000000
For Credit to Account #000-000-000
Trust Account #000018012500 for AFLIC-Traditional Portfolio
Attention: Xxxxx Xxxxxxx (000) 000-0000
Credit for PPN 56633# AG 8
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: BAND & Co.
Taxpayer I.D. Number: 00-0000000
A-7
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
AMERICAN FAMILY LIFE INSURANCE COMPANY A $2,000,000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Telefacsimile Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
ABA #000000000
For Credit to Account #000-000-000
Trust Account #000018012510 for Universal Life Portfolio
Attention: Xxxxx Xxxxxxx (000) 000-0000
Credit for PPN 56633# AG 8
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: BAND & Co.
Taxpayer I.D. Number: 00-0000000
A-8
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
AMERICAN FAMILY LIFE INSURANCE COMPANY A $1,000,000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Telefacsimile Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
ABA #000000000
For Credit to Account #000-000-000
Trust Account #000018012800 for Annuities Portfolio
Attention: Xxxxx Xxxxxxx (000) 000-0000
Credit for PPN 56633# AG 8
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: BAND & Co.
Taxpayer I.D. Number: 00-0000000
A-9
PRINCIPAL
AMOUNT OF
TRANCHE SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
WEST AMERICAN INSURANCE COMPANY A $3,000,000
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Investment Department, Private Placements
Facsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Marcus Corporation, Series D Senior Notes, Tranche A, due April 1, 2009, PPN
56633# AG 8, principal, premium or interest") to:
Chase NYC/CUST
ABA #021 000 021
A/C# 000-0-000000
Attention: Income Collection
FAO: A/C# G 06426 A/C Name: West American Insurance Company
CUSIP 56633# AG 8
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed as follows:
Ohio Casualty Group
Xxxx X. Xxxxxxxxx, Asset Administration
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and also to:
Chase Manhattan Bank
Xxxxxx Xxxxxxx, Asst. Treasurer
Specialty Markets
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: Xxxx & Co.
Taxpayer I.D. Number: 00-0000000
Taxpayer I.D. Number of Xxxx & Co.: 00-0000000
X-00
XXXXXXXXX
XXXXXX XX
XXXXXXX SERIES D SENIOR
NAME OF PURCHASERS NOTES TO BE
PURCHASED
STATE OF WISCONSIN INVESTMENT BOARD B $21,000,000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Manager, Private Placements Core-WI Portfolio
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, on or before 11:00 a.m. local time
on each payment date (identifying each payment as "The Marcus Corporation,
Series D Senior Notes, Tranche B, due April 1, 2012, PPN 56633# AH 6, principal,
premium or interest") to:
ABA #011-00-1234 Mellon/Boston Safe Deposit For credit to the State of
Wisconsin Investment Board Account #064300
With notice of payment, including a message as to the source
(identifying the security by name and CUSIP number) and application of
funds, copy of notice of payment to:
Ms. Xxxxx Xxxxxx
Accounting Supervisor - Alternative Investments
Investment Operations
State of Wisconsin Investment Board
000 Xxxx Xxxxxx Xxxxxx
P. O. Box 7842
Madison, Wisconsin 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Address for notices other than confirmation of payment is:
Postal Address
State of Wisconsin Investment Board
000 Xxxx Xxxxxx Xxxxxx
P. O. Box 7842
Madison, Wisconsin 53707-7842
Attention: Xxxxxx X. Xxxxxxx, Manager, Wisconsin Private Debt Portfolio
Street Address
State of Wisconsin Investment Board
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Manager, Wisconsin Private Debt Portfolio
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-11
SUPPLEMENTAL REPRESENTATIONS
The Company represents and warrants to each Purchaser that except as
hereinafter set forth in this Exhibit A, each of the representations and
warranties set forth in Section 5 of the Note Agreements is true and correct as
of the date hereof with respect to the Series D Notes with the same force and
effect as if each reference to "Series A Notes" set forth therein was modified
to refer to the "Series D Notes" and each reference to "this Agreement" therein
was modified to refer to the Note Agreement as supplemented by the First
Supplement, the Second Supplement and the Third Supplement. The Section
references hereinafter set forth correspond to the similar sections of the Note
Agreements which are supplemented hereby:
Section 5.3. Disclosure. The Company, through its agent, Banc America
Securities LLC, has delivered to each Purchaser a copy of a Private Placement
Memorandum, dated February, 2002 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Restricted Subsidiaries. The Note Agreements, the
Memorandum, the documents, certificates or other writings delivered to each
Purchaser by or on behalf of the Company in connection with the transactions
contemplated by the Note Agreements and the Third Supplement and the financial
statements listed in Schedule 5.5 to the Third Supplement, taken as a whole, do
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made. Since May 31, 2001, there has
been no change in the financial condition, operations, business, properties or
prospects of the Company or any Restricted Subsidiary except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to the Company that could
reasonably be expected to have a Material Adverse Effect that has not been set
forth in the Note Agreements or the Third Supplement or in the Memorandum or in
the other documents, certificates and other writings delivered to each Purchaser
by or on behalf of the Company specifically for use in connection with the
transactions contemplated by the Third Supplement.
Section 5.4. Organization and Ownership of Shares of Restricted
Subsidiaries; Affiliates and Investments. (a) Schedule 5.4 to the Third
Supplement contains (except as noted therein) complete and correct lists (i) of
the Company's Restricted and Unrestricted Subsidiaries, and showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization, and
the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Unrestricted Subsidiaries, (iii) of the
Company's directors and senior officers and (iv) the Investments existing at the
Closing, other than Investments in Subsidiaries and Affiliates.
EXHIBIT A
(to Third Supplement)
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Series D Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any Person other
than the Purchasers and not more than 52 other Institutional Investors, each of
which has been offered the Series D Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Series D Notes to the
registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Series D Notes to repay outstanding
indebtedness and for general corporate purposes. No part of the proceeds from
the sale of the Series D Notes hereunder will be used, directly or indirectly,
for the purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System (12 CFR
222), or for the purpose of buying or carrying or trading in any securities
under such circumstances as to involve the Company in a violation of Regulation
X of said Board (12 CFR 224) or to involve any broker or dealer in a violation
of Regulation T of said Board (12 CFR 220). As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall have the meanings
assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as described
therein, Schedule 5.15 to the Third Supplement sets forth a complete and correct
list of all outstanding Debt of the Company and its Restricted Subsidiaries as
of February 28, 2002, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of
the Debt of the Company or its Restricted Subsidiaries. Neither the Company nor
any Restricted Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Debt of the Company
or such Restricted Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Restricted Subsidiary that would permit (or that
with notice or the lapse of time, or both, would permit) one or more Persons to
cause such Debt to become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
A-2
SUBSIDIARIES, AFFILIATES, DIRECTORS AND
SENIOR OFFICERS, AND INVESTMENTS
1. RESTRICTED SUBSIDIARIES
The Marcus Corporation owns 100% of the stock of the following
corporations:
NAME STATE OF INCORPORATION
B & G Realty, Inc. Wisconsin
Baymont Inns, Inc. Wisconsin
First American Finance Corporation Wisconsin
Marcus Hotels, Inc. Wisconsin
Marcus Restaurants, Inc. Wisconsin
Marcus Theatres Corporation Wisconsin
Woodfield Suites, Inc. Wisconsin
B&G Realty, Inc. is the sole member of the following limited liability
company:
NAME STATE OF ORGANIZATION
Rush Ontario, LLC Delaware
Baymont Inns, Inc. owns 100% of the stock of the following corporations:
NAME STATE OF INCORPORATION
Baymont Franchises International, Inc. Wisconsin
Baymont Inns Hospitality Corporation Wisconsin
Baymont Partners, Inc. Wisconsin
Marcus Hotels, Inc. owns 100% of the stock or outstanding equity
interests of the following corporations and limited liability companies:
NAME STATE OF INCORPORATION/
ORGANIZATION
Grand Geneva, LLC Wisconsin
Marcus Hotel Partners, Inc. Wisconsin
Marcus Hotels Associates, Inc. Wisconsin
Marcus Hotels Hospitality, LLC Wisconsin
Marcus Northstar, Inc. Minnesota
Milwaukee City Center, LLC Wisconsin
Xxxxxxx, LLC Wisconsin
Resort California, LLC California
Resort Missouri, LLC Delaware
SCHEDULE 5.4
(to Third Supplement)
Marcus Restaurants, Inc. owns 100% of the stock of the following
corporations:
NAME STATE OF INCORPORATION
Cafe Refreshments, Inc. Wisconsin
Captains-Kenosha, Inc. Wisconsin
Colony Inns Restaurant Corporation Wisconsin
Marc's Carryout Corporation Wisconsin
Marcus Theatres Corporation owns 100% of the stock or outstanding equity
interests of the following corporation and limited liability companies:
NAME STATE OF INCORPORATION/
ORGANIZATION
Family Entertainment, LLC Wisconsin
Marcus Cinemas of Minnesota and Illinois, Inc. Illinois
Marcus Cinemas of Ohio, LLC Wisconsin
Marcus Theatres Corporation and Marcus Cinemas of Minnesota and Illinois,
Inc. own 100% of the outstanding equity interests in the following limited
liability company:
NAME STATE OF ORGANIZATION
Marcus Cinemas of Wisconsin, LLC Wisconsin
Woodfield Suites, Inc. owns 100% of the stock of the following
corporations:
NAME STATE OF INCORPORATION
Woodfield Suites Franchises International, Inc. Wisconsin
Woodfield Suites Hospitality Corporation Wisconsin
Woodfield Suites Hospitality Corporation owns 100% of the stock of the
following corporations:
NAME STATE OF INCORPORATION
Woodfield Refreshments, Inc. Wisconsin
Woodfield Refreshments of Colorado, Inc. Colorado
Woodfield Refreshments of Ohio, Inc. Ohio
Woodfield Refreshments, Inc. owns 100% of the stock of the following
corporation:
NAME STATE OF INCORPORATION
Woodfield Refreshments of Texas, Inc. Texas
5.4-2
2. UNRESTRICTED SUBSIDIARIES
NONE
3. AFFILIATES OF THE COMPANY
ENTITY NAME PROPERTY LOCATION
Marc's/Forest City Partnership Xxxxxxxx Heights, OH
LMC Associates - Rockside Partnership Independence, OH
Willowbrook Motel Limited Partnership Willowbrook, IL
BN/MC Associates - Xxxx Partnership Glenview, IL
Hoffman Northwest Limited Partnership Hoffman Estates, IL
Marc/Xxxxxx Partnership Roseville, MI
Xxxxxx-Xxxxxxxx-Xxxxxxxxx Partnership Warren, MI
Xxxx/Marcus Associates-Miami Airport Partnership Miami Springs, FL
Xxxxxx Ridge Associates Partnership Xxxxxx Ridge, FL
Baymont-Erlanger, LLC Louisville, KY
5.4-3
4. DIRECTORS AND SENIOR OFFICERS OF THE COMPANY
DIRECTORS
Xxxxxx X. XxXxxxxxx, Xx.
President, Tamarack Petroleum Company, Inc.
Xxxxx Xxxxxx Xxxxxxxxxx
Real estate management and investments
Xxxxxxx X. Xxxxxxxx
President, Midwest Express Airlines, Inc.
Xxxxx X. (Xxx) Xxxxx
President and Chief Executive Officer, Milwaukee Brewers Baseball Club
Xxxxxxx X. Xxxxxx
Chairman of the Board, President and Chief Executive Officer of the Company
Xxxxx X. Xxxxx
Group Vice President of the Company
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer of Emigrant Savings Bank
Xxxxxxx Xxxxx
President and Chief Executive Officer of Wisconsin Gas Company
Xxxxx X. Xxxxxxx
Retired Chairman, President and CEO of The Northwestern Mutual Life Insurance
Company
SENIOR OFFICERS
Xxxxxxx X. Xxxxxx
Chairman of the Board, President and Chief Executive Officer of the Company
Xxxxx X. Xxxxx
Group Vice President of the Company
Xxxxxxx X. Xxxx
President, Marcus Hotels and Resorts
H. Xxxx Xxxxxxxxxxx
Vice President-Human Resources
Xxxxx X. Xxxxxxxxxx
President, Baymont Inn & Suites
Xxxxxx X. Xxxxxxxxx
General Counsel and Secretary
Xxxxxxx X. Xxxx
Chief Financial Officer and Treasurer
5.4-4
5. INVESTMENTS
As of February 28, 2002
# OF SHARES
OR UNITS
OF INVESTMENT AMOUNT
Grand Avenue Corporation 150 $150,000.00
North Milwaukee State Bank Capital Debentures 1,000 10,000.00
Venture Capital Fund 28,618.00
Legacy Bankcorp 25,000.00
Milwaukee Innovation 150 15,000.00
Wisconsin Community Capital 30 15,000.00
Sholodge 78,000 448,525.00
Library Hill Bonds 12,500.00
Miscellaneous Stocks (1 share each) 133 957.00
-------------
Total $705,600.00
5.4-5
FINANCIAL STATEMENTS
The audited consolidated balance sheets of the Company and its
Subsidiaries as of the fiscal years ended in May in each of the years 1997 to
2001, both inclusive, and the consolidated statements of income and
shareholders' equity and cash flows for the fiscal years ended on said dates and
the Securities and Exchange Commission Form 10-Q for the fiscal quarter ended
November 29, 2001 and Securities and Exchange Commission Form 10-K for the
fiscal year ended May 31, 2001.
SCHEDULE 5.5
(to Third Supplement)
EXISTING DEBT
AS OF FEBRUARY 28, 2002
BANK BALANCE INTEREST RATE
B&G REALTY
MORTGAGES:
PNC BANK $ 748,180 8.7700%
FIRSTAR BANK (IRB) 1,105,000 6.4700%
US BANK 656,103 LIBOR + 1.75 3.6240%
XXXXXXX 226,365 6.5000%
---------
TOTAL B&G REALTY DEBT 2,735,648
---------
MARCUS CORPORATION
SENIOR NOTES, SERIES A, TRANCHE A: 7.4100%
MASS MUTUAL 9,722,223
NATIONWIDE 7,777,777
CIGNA 7,840,000
LINCOLN NATIONAL LIFE 3,826,668
RELIASTAR 7,777,777
AAL 7,777,777
CLARICA LIFE 1,944,446
---------
46,666,668
SENIOR NOTES, SERIES A, TRANCHE B: 7.5100%
MASS MUTUAL 11,363,640
NATIONWIDE 9,090,910
CLARICA LIFE 2,272,723
----------
22,727,273
SENIOR NOTES, SERIES B, TRANCHE A:
CIGNA 5,000,000 6.6600%
SENIOR NOTES, SERIES B, TRANCHE B:
NML 25,000,000 6.7000%
SENIOR NOTES, SERIES C, TRANCHE A:
CIGNA 15,000,000 6.7500%
SENIOR NOTES, SERIES C, TRANCHE B:
LINCOLN NATIONAL LIFE 25,000,000 6.8200%
SENIOR NOTES:
NML 11,981,291 10.2200%
UNSECURED TERM NOTES:
BANK ONE 20,000,000 LIBOR + 1.0 3.5800%
SUN TRUST 6,250,000 LIBOR + 0.75 2.6200%
WPL 240,562 2.0000%
----------
26,490,562
REVOLVING CREDIT AGREEMENTS:
BANK OF AMERICA ($125 MILLION) 71,500,000 OFFSHORE + 0.75 2.4250%
BANK OF AMERICA ($5 MILLION) 4,000,000 PRIME 4.7500%
BANK ONE ($40 MILLION) - OFFSHORE + 1.0
----------
75,500,000
SCHEDULE 5.15
(to Third Supplement)
BANK BALANCE INTEREST RATE
COMMERCIAL PAPER - UNRATED 63,544,153 2.3900%
TOTAL MARCUS CORP DEBT 316,909,947
THEATRE DIVISION:
US BANK 86,909 PRIME 4.7500%
XXXXX ENTERPRISES 81,307 6.0000%
----------
TOTAL THEATRE DIVISION DEBT 268,216
BAYMONT DIVISION:
US BANK 3,118,168 7.6800%
CORRUS BANK 898,425 0.923 X PRIME 4.3843%
----------
TOTAL BAYMONT DIVISION DEBT 4,016,593
TOTAL EXISTING DEBT $323,930,404
============
5.15-2
LIENS ON EXISTING PROPERTY
AS OF FEBRUARY 28, 2002
BALANCE PROPERTY
B&G Realty:
PNC Bank $ 000,000 Xxxxxxx Xxx, Xxxxxxxx, XX
Firstar Bank (IRB) 1,105,000 Westpoint Annies/Baymont,
Brookfield, WI
US Bank 656,103 Westpoint Theatre/KFC,
Brookfield, WI
Xxxxxxx 226,365 LaCrosse Theatres, LaCrosse, WI
Theatre Division - Marcus
Corporation:
XX Xxxx 00,000 Xxxxxx Xxxxxxx, Xxxxxxxxx, XX
Xxxxx Enterprises 181,307 Elgin Cinema, Elgin, IL
Baymont Division - Marcus
Corporation:
US Bank 3,118,167 Baymont Inn, Warren, MI
Corrus Bank 898,425 Baymont Inn, Roseville, MI
---------
TOTAL DEBT SECURED BY LIENS $7,020,456
Note: The debt listed above is secured by all real and personal property
situated at the location set forth opposite such debt.
5.15-3
[FORM OF SERIES D NOTE, TRANCHE A]
THE MARCUS CORPORATION
7.66% SERIES D SENIOR NOTE, TRANCHE A DUE APRIL 1, 2009
No. DA-[___] [Date]
$[____________] PPN 56633# AG 8
FOR VALUE RECEIVED, the undersigned, THE MARCUS CORPORATION (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Wisconsin, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] DOLLARS on April 1,
2009, with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 7.66% per annum from
the date hereof, payable semiannually, on the first day of April and October in
each year, commencing on the first of such dates after the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.66% or (ii) 2% over the rate of interest publicly announced by
Bank of America, N.A., from time to time in Chicago, Illinois as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Bank of America, N.A., in Chicago, Illinois, or at such other place
as the Company shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreements referred to below.
This Note is one of a series of 7.66% Series D Senior Notes, Tranche A
(the "Tranche A Notes") issued pursuant to a supplement to the separate Note
Purchase Agreements dated as of October 25, 1996 (as from time to time amended
and supplemented, including a First Supplement dated as of May 15, 1998, a
Second Supplement dated as of May 1, 1999, and a Third Supplement dated as of
April 1, 2002, the "Note Purchase Agreements"), between the Company and the
respective Purchasers named therein. This Note and the holder hereof are
entitled equally and ratably with the holders of all other Notes of all Series
from time to time outstanding under the Note Purchase Agreements to all the
benefits provided for thereby or referred to therein. Each holder of this Note
will be deemed, by its acceptance hereof, to have made the representation set
forth in Section 6.2 of the Note Purchase Agreements, provided that such holder
may (in reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by
such holder of any Note will not constitute a non-exempt prohibited transaction
under Section 406(a) of ERISA.
EXHIBIT 1
(to Third Supplement)
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Tranche A Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
-2-
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
THE MARCUS CORPORATION
By
Its:____________________________________
Printed Name:___________________________
-3-
[FORM OF SERIES D NOTE, TRANCHE B]
THE MARCUS CORPORATION
7.93% SERIES D SENIOR NOTE, TRANCHE B DUE APRIL 1, 2012
No. DB-[___] [Date]
$[____________] PPN 56633# AH 6
FOR VALUE RECEIVED, the undersigned, THE MARCUS CORPORATION (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Wisconsin, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] DOLLARS on April 1,
2012, with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 7.93% per annum from
the date hereof, payable semiannually, on the first day of April and October in
each year, commencing on the first of such dates after the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.93% or (ii) 2% over the rate of interest publicly announced by
Bank of America, N.A., from time to time in Chicago, Illinois as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Bank of America, N.A., in Chicago, Illinois, or at such other place
as the Company shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreements referred to below.
This Note is one of a series of 7.93% Series D Senior Notes, Tranche B
(the "Tranche B Notes") issued pursuant to a supplement to the separate Note
Purchase Agreements dated as of October 25, 1996 (as from time to time amended
and supplemented, including a First Supplement dated as of May 15, 1998, a
Second Supplement dated as of May 1, 1999, and a Third Supplement dated as of
April 1, 2002, the "Note Purchase Agreements"), between the Company and the
respective Purchasers named therein. This Note and the holder hereof are
entitled equally and ratably with the holders of all other Notes of all Series
from time to time outstanding under the Note Purchase Agreements to all the
benefits provided for thereby or referred to therein. Each holder of this Note
will be deemed, by its acceptance hereof, to have made the representation set
forth in Section 6.2 of the Note Purchase Agreements, provided that such holder
may (in reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by
such holder of any Note will not constitute a non-exempt prohibited transaction
under Section 406(a) of ERISA.
EXHIBIT 2
(to Third Supplement)
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Tranche B Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
-2-
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
THE MARCUS CORPORATION
By
Its:____________________________________
Printed Name:___________________________
-3-
