Exhibit 4.4
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THE MARCUS CORPORATION
SECOND SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of May 1, 1999
Re: $15,000,000; 6.75% Series C Senior Notes, Tranche A,
due May 1, 2014
and
$25,000,000 6.82% Series C Senior Notes, Tranche B,
due May 1,2014
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SECOND SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of
May 1, 1999
To the Purchaser named in
Schedule A hereto which is
a signatory of this Agreement
Ladies and Gentlemen:
This Second Supplement to Note Purchase Agreements (the "Second
Supplement") is between The Marcus 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 $15,000,000 aggregate
principal amount of its 6.75% Series C Senior Notes, Tranche A due May 1, 2014
(the "Tranche A Notes") and $25,000,000 aggregate principal amount of its 6.82%
Series C Senior Notes, Tranche B due May 1, 2014 (the "Tranche B Notes" and
together with the Tranche A Notes, the "Series C Notes"). The Series C 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, which may from time to time be issued pursuant to the provisions of
Section 2.2 of the Notes 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 C 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 $40,000,000 in aggregate principal amount of the Series
C 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 May 7, 1999 or such later date (not later than May
30, 1999 as shall mutually be agreed upon by the Company and the Purchasers of
the Series C Notes (the "Closing").
4. (a) Required Prepayments.
(i) Tranche A Notes. On May 1, 2004 and on each May 1 thereafter
to and including May 1, 2013, the Company will prepay $1,363,636
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 May 1,
2014. For purposes of this Section 4(a)(i), any prepayment of less
than all of the outstanding Tranche A Notes pursuant to Section 4(b)
shall be deemed to be applied first to the amount of principal
scheduled to be repaid on May 1, 2014, and then to the remaining
scheduled principal payments, if any, in inverse chronological order.
(ii) Tranche B Notes. On May 1, 2008 and on each May 1 thereafter
to and including May 1, 2013, the Company will prepay $3,571,429
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 May 1,
2014. For purposes of this Section 4(a)(ii), any prepayment of less
than all of the outstanding Tranche B Notes pursuant to Section 4(b)
shall be deemed to be applied first to the amount of principal
scheduled to be repaid on May 1, 2014, 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 C Notes pursuant to Section 8.5 of the Note Agreements or a Partial
Redemption of the Series C Notes all required prepayments on the Series C
Notes shall be adjusted as provided in Section 8.1(c) of the Note
Agreements.
(c) Optional Prepayments. The Series C 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 C Notes pursuant to the provisions of Section 8.2
of the Note Agreements, the principal amount of the Series C 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 C
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 C Notes. The term "Make-Whole Amount"
means, with respect to any Series C 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 C 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 C Note of any
Tranche, the principal of such Series C 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 C 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 C 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 C 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 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 C 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 C 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 C 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 C
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 C Notes.
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:/s/ Xxxxxxx X. Xxxxxx
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Its: President
Printed Name: Xxxxxxx X. Xxxxxx
Accepted as of May 1, 1999:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA Investments, Inc.,
Its Authorized Agent
By:/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Accepted as of May 1, 1999:
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-in-Fact
By:/s/ Xxxxxxx X. Power
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Name: Xxxxxxx X. Power
Title: Vice President
Accepted as of May 1, 1999:
LINCOLN NATIONAL HEALTH & CASUALTY
INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-in-Fact
By:/s/ Xxxxxxx X. Power
-------------------------------------
Name: Xxxxxxx X. Power
Title: Vice President
Accepted as of May 1, 1999:
LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK
By: Lincoln Investment Management, Inc.,
Its Attorney-in-Fact
By: /s/ Xxxxxxx X. Power
------------------------------------
Name: Xxxxxxx X. Power
Title: Vice President
