Fourth Amendment -- Page 14
FOURTH AMENDMENT TO NOTE AGREEMENTS
This Fourth Amendment to Note Agreements (the "Amendment")
is entered into as of May 8, 1997 (with an effective date of
March 26, 1997), by and among NPC International, Inc., a Kansas
corporation formerly known as National Pizza Company ("NPCI"),
NPC Management, Inc., a Delaware corporation ("NPC Management"),
Pacific Mutual Life Insurance Company ("Pac Mutual"), Pacific
Corinthian Life Insurance Company ("Pacific Corinthian") and
Lutheran Brotherhood. Pac Mutual, Pacific Corinthian and
Lutheran Brotherhood are each referred to herein as a "Purchaser"
and are collectively referred to herein as the "Purchasers."
Preliminary Statements
(a) NPCI is indebted to the Purchasers pursuant to three
separate Note Agreements, each dated as of March 30, 1993, as
amended (each a "Note Agreement" and, collectively, the "Note
Agreements"). The Note Agreements relate to NPCI's 6.35% Senior
Notes due April 1, 2000 issued to the Purchasers in the aggregate
stated principal amount of $20,000,000 (collectively, and as
amended from time to time, the "Notes").
(b) NPCI and NPC Management have requested of the
Purchasers that NPCI be permitted to assign its obligations under
the Notes to NPC Management and that, in connection therewith,
NPCI and all of its existing and future Subsidiaries (other than
NPC Management) guarantee the payment and performance of all
obligations of NPC Management under the Notes.
(c) NPCI and NPC Management have further requested that
certain conforming changes be made to the Note Agreements in
connection with such assignment and assumption.
(d) The Purchasers have agreed to the foregoing request by
NPCI and NPC Management, subject, however, to the terms and
conditions of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. Assumption by NPC Management. NPC Management hereby
assumes and agrees to pay and perform all existing and future
obligations of any nature whatsoever of NPCI under the Notes and
the Note Agreements (collectively, the "Note Documents"), and to
be bound by every provision in the Note Documents applicable to
NPCI. Without limiting the generality of the foregoing, NPC
Management hereby assumes and agrees to pay all principal of and
premium, if any, and interest on the Notes in accordance with the
terms thereof.
2. Release of NPCI. Subject to Section 3 below, the
Purchasers hereby release and discharge NPCI from all of its
existing and future obligations under the Note Documents.
Without limiting the generality of the foregoing, but subject to
Section 3 below, the Purchasers hereby release and discharge NPCI
from its obligation to pay the principal of, premium, if any, and
interest on the Notes.
3. Master Guaranty.
(a) In consideration of the Purchasers consenting to
the transactions described in Sections 1 and 2 above, and in
recognition that the Purchasers would not give such consent
but for the promises hereunder, NPCI and each Subsidiary of
NPCI (other than NPC Management) agrees to guaranty the
payment and performance of NPC Management's existing and
future obligations under the Note Documents, in each case
pursuant to a Master Guaranty substantially in the form of
Exhibit H attached hereto (as amended from time to time, the
"Master Guaranty"). NPCI and each of its Subsidiaries
(other than NPC Management) shall execute and deliver the
Master Guaranty contemporaneously with the execution and
delivery of this Amendment.
(b) Nothing in Section 2 above (including, without
limitation, any release by the Purchasers of NPCI's
obligations under the Notes) shall release, limit or
otherwise impair NPCI's obligations under the Master
Guaranty; it being understood that the release referred to
in Section 2 above relates only to NPCI's obligations as the
original and primary obligor under the Note Documents, and
not NPCI's obligations as a guarantor under the Master
Guaranty.
4. General Conforming Amendments to Note Documents. Each
of the Note Documents is hereby amended as follows:
(a) Company. Unless the context clearly requires
otherwise, all references in the Notes or the Note
Agreements to the "Company" shall be deemed to refer instead
to NPC Management; provided, however, that (i) all
references in the Note Agreements to the "the Company and
its Subsidiaries" or "the Company or any Subsidiary" (or, in
either case, words of similar import) shall be deemed to
refer instead to "NPCI and its Subsidiaries" or "NPCI or any
Subsidiary," as the case may be, with such grammatical
changes as may be incidental thereto, and (ii) all
references in 5.1A of the Note Agreements to any filings
by the "Company" with the Securities and Exchange Commission
(or any similar references to filings with or notices to
shareholders or other agencies) shall be deemed to refer
instead to any such filings or notices by NPCI; it being
understood that nothing in this Amendment shall limit or
otherwise affect the reporting requirements of NPCI and its
Subsidiaries to the Purchasers under the Note Documents.
(b) Restricted Subsidiary. Unless the context clearly
requires otherwise, all references in the Notes or the Note
Agreements to a "Restricted Subsidiary" or "Restricted
Subsidiaries" shall be deemed to refer instead to a
Guarantor or Guarantors, as the case may be, with such
grammatical changes as may be incidental thereto.
(c) Subsidiary. The definition of "Subsidiary" in
10A of the Note Agreements is deleted as is replaced by the
following:
"Subsidiary" shall mean, as to
any Person, any other Person of
which or in which such Person and
its other Subsidiaries owns
directly or indirectly 50% or more
of (i) the combined voting power of
all classes of stock having general
voting power under ordinary
circumstances to elect a majority
of the board of directors of such
Person, if it is a corporation,
(ii) the capital interest or
profits interest of such Person, if
it is a partnership, joint venture
or similar entity, or (iii) the
beneficial interest of such Person,
if it is a trust, association or
other incorporated organization.
(d) Guarantor. A new defined term "Guarantor" is
added to 10B of the Note Agreements which reads as
follows:
"Guarantor" means NPCI and any
Subsidiary of NPCI (other than the
Company), and any other Person who
may be a guarantor under the Master
Guaranty from time to time.
5. Permitted Liens. 6C(1)(vi) is deleted in its
entirety and is replaced by the following:
(vi) other Liens on the property of the
Company or any Guarantor to secure Debt of
the Company or any Guarantor, provided that
(x) the aggregate amount of (1)
such Debt secured by such Liens and (2)
any other Debt incurred by any Guarantor
pursuant to 6C(4) (collectively,
"Priority Debt"), does not exceed at any
time an amount equal to twenty percent
(20%) of Consolidated Net Worth, and
(y) all such Debt shall have been
incurred within the applicable
limitations provided in 6C(2)(a)(iii).
6. Permitted Debt.
(a) General. 6C(2) of the Note Agreements is
deleted in its entirety and is replaced by the following:
(2) Debt. (a) The Company will not and
will not permit any Guarantor to create,
incur, or assume or in any manner be or
become liable in respect of any Debt, except
(i) Debt evidenced by the Notes;
(ii) Debt of the Company and the
Guarantors described on Exhibit F,
including, in the case of any Guarantor,
any Permitted Guaranty Debt in respect
of such Debt;
(iii) additional unsecured Debt
of the Company and the Guarantors and
Debt of the Company and the Guarantors
secured by Liens permitted by 6C(1)(v)
and (vi), provided that at the time of
issuance thereof and after giving effect
thereto and to the application of
proceed thereof
(x) Consolidated Debt shall
not exceed an amount equal to (i)
prior to and including March 31,
1998, three and one-fourths times
(3.25x) Consolidated Pro Forma
EBITDA, and (ii) thereafter, three
times (3.0x) Consolidated Pro Forma
EBITDA, in each case for the four
fiscal quarters immediately
preceding the date of
determination, and
(y) in the case of Debt to be
incurred by a Guarantor, such Debt
could be incurred within the
applicable limitations provided in
6C(4);
(iv) Debt of the Company to any
Guarantor or Debt of any Guarantor to
the Company or to any other Guarantor;
and
(v) in the case of Romacorp, Inc.,
Debt due T.R. Restaurant Group pursuant
to a promissory note dated July 20,
1992, from Romacorp, Inc.'s predecessor
to T. R. Restaurant Group in the
original principal amount of $4,000,000.
(b) Guarantor Debt. 6C(4) is deleted in its
entirety and is replaced by the following:
(4) Guarantor Debt. The Company will
not permit any Guarantor to create, incur or
assume or in any manner become liable in any
respect of any Debt other than Permitted
Guaranty Debt
(i) if, at the time such Debt is
created, incurred or assumed and after
giving effect thereto, the aggregate
amount of Priority Debt of the Company
and the Guarantors would exceed an
amount equal to twenty percent (20%) of
Consolidated Net Worth at such time, and
(ii) such Debt can be incurred
within the applicable limitations
provided in 6C(2)(A)(iii).
7. Additional Fixed Charge Coverage Ratio Covenant. A new
6D to the Note Agreement is added which reads as follows:
D. Fixed Charges. The Company
covenants that, on the last day of each
fiscal quarter, the ratio of (a) Consolidated
Pro Forma EBITDA plus the consolidated
operating lease rental expense of NPCI and
its Subsidiaries to (b) Fixed Charges will be
not less than 1.5 to 1.0, for the period
consisting of the four (4) consecutive fiscal
quarters ending on the date of such
determination. For purposes of determining
whether the entering into of any lease
results in a breach of this 6D, the Company
shall make the calculation required under
this 6D as of the date such lease is
entered into on the assumption that the
rental expense that is expected to be
incurred during the twelve-month period
following the entering into of the lease was
incurred during the twelve-month period
ending on the date of such calculation.
8. Intercompany Asset Transfers. In order to permit the
Company and the Guarantors to sell or otherwise transfer assets
to one another from time to time, 6C(6)(iii) of the Note
Agreement is deleted in its entirety and is replaced by the
following:
"(iii) the Company may sell, lease,
transfer or otherwise dispose of assets to
any Guarantor (excluding Pizza Hut franchise
rights), and any Guarantor may sell, lease,
transfer or otherwise dispose of assets to
any other Guarantor or to the Company."
Nothing in 6(C)(3) [relating to Restricted Investments] or in
6(C)(7) [relating to Transactions with Affiliates] shall prohibit
or otherwise impair the ability of the Company or any Guarantor
to sell, lease, transfer or otherwise dispose of assets
(including, without limitation, financial assets) to the extent
such sale, lease, transfer or other disposal is permitted
pursuant to 6C(6)(iii).
9. Representations regarding Outstanding Debt. 8I of
the Note Agreements is deleted and is replaced by the following:
I. Outstanding Debt; No Defaults.
Neither the Company nor any Guarantor has
outstanding any Debt except as permitted by
6C(2). Exhibit F describes the outstanding
principal amount, as of April 30, 1997, of
the Debt described in 6C(2)(a)(ii). The
outstanding principal amount, as of April 30,
1997, of the Debt described in 6C(2)(a)(v)
is $1,764,459. There exists no default under
the provisions of any instrument evidencing
any such Debt or of any agreement relating
thereto. No Default or Event of Default has
occurred and is continuing.
10. Organizational Structure; Joinder Agreement. 8A and
8B of the Note Agreements are deleted and are replaced by the
following:
A. Subsidiaries.
(1) Ownership. NPCI owns 100% of
the Voting Securities of the Company.
Exhibit E attached hereto states the
name of each Subsidiary of NPCI (other
than the Company), its jurisdiction of
incorporation or organization, and the
ownership of its Voting Securities. The
Company and each Guarantor has good and
marketable title to all of the equity
interests it purports to own as set
forth on Exhibit E, free and clear in
each case of any Lien. All such shares
and other equity interests have been
duly issued and are fully paid and non-
assessable.
(2) Guarantors; Joinder Agreement.
NPCI and each existing and hereafter
acquired or created Subsidiary of NPCI
(other than the Company) shall
unconditionally and jointly and
severally guarantee the payment of all
principal on, premium, if any, and
interest on the Notes and all other
obligations of the Company under this
Agreement in accordance with and
pursuant to the terms of the Master
Guaranty. If NPCI or any existing
Subsidiary of NPCI hereafter creates or
acquires any Subsidiary, such Subsidiary
shall execute and deliver to the
Purchasers the Joinder Agreement
referred to in the Master Guaranty and
shall thereupon become unconditionally
and jointly and severally liable for the
payment of all principal on, premium, if
any, and interest on the Notes and all
other obligations of the Company under
this Agreement in accordance with and
pursuant to the terms of the Master
Guaranty. NPCI and its Subsidiaries
listed in Exhibit E constitute the
initial Guarantors.
B. Organization; Qualification;
Corporate Authority. The Company is a
corporation duly organized, validly existing
and in good standing under the laws of the
State of Delaware; each Guarantor is duly
organized, validly existing and in good
standing under the laws of the jurisdiction
in which it is incorporated or organized.
The Company has and each Guarantor has the
corporate or other organizational power to
own its respective property and to carry on
its respective business as now being
conducted, and the Company is duly qualified
as a foreign corporation to do business and
is in good standing in every jurisdiction in
which the nature of the business conducted by
it makes such qualification necessary. The
execution, delivery and performance by the
Company of this Agreement and the Notes are
within the Company's corporate powers and
have been duly authorized by all necessary
corporate action.
11. Additional Definitions. The following definitions are
added to 10A of the Note Agreements in the appropriate
alphabetical order:
"Consolidated Debt" shall mean all Debt
of NPCI and its Subsidiaries, determined on a
consolidated basis eliminating intercompany
items. (And all references in the Note
Agreements to "Consolidated Funded Debt"
shall be deemed to refer instead to
"Consolidated Debt.")
"Consolidated Net Income Available for
Fixed Charges" for any period shall mean the
sum of Consolidated Net Income during such
period, plus (to the extent deducted in
determining Consolidated Net Income during
such period) (i) interest expense,
(ii) provision for income taxes,
(iii) depreciation and amortization, and
(iv) operating lease expense.
"Consolidated Net Worth" shall mean the
stockholders' equity account of NPCI and its
Subsidiaries on a consolidated basis,
according to GAAP.
"Consolidated Pro-Forma EBITDA" shall
mean, for any period, EBITDA of NPCI and its
Subsidiaries on a consolidated basis during
such period; provided, however, that for
purposes of calculating Consolidated Pro-
Forma EBITDA with respect to any Pizza Hut or
Xxxx Xxxx'x restaurant to be acquired by the
Company or any Subsidiary (each, an
"acquisition target"), the EBITDA of the
acquisition target for each full fiscal
quarter included in the computational period
prior to the acquisition (including the
fiscal quarter during which it was acquired)
shall be included, without duplication, and
shall be reasonably adjusted for tangible
operational changes due to field expenses
differentials, royalty payments to be made to
Pizza Hut, Inc., contractual rent payments on
real estate and equipment and general and
administrative cost differences
(collectively, "acquisition adjustments").
Prior to, and in connection with, the
calculation of Consolidated Pro-Forma EBITDA,
the Company shall provide each Purchaser with
appropriate documentation, certified by an
authorized financial officer of the Company,
supporting the reasonableness of the
acquisition adjustments.
"EBITDA" shall mean Consolidated Net
Income before interest expense, provision for
taxes (to the extent not excluded from
Consolidated Net Income), depreciation,
amortization and the noncash portion of
nonrecurring charges (as defined in GAAP).
"Master Guaranty" means the Master
Guaranty attached hereto as Exhibit H, as the
same may be amended from time to time.
"NPCI" shall mean NPC International,
Inc., a Kansas corporation formerly known as
National Pizza Company.
"Permitted Guaranty Debt" shall mean any
Debt evidenced by the Master Guaranty and any
Debt evidenced by any guaranty agreement
given by any Guarantor in favor of any holder
of any Debt described in Exhibit F, and any
holder of any Permitted Debt of the Company
incurred in the future, whereby such
Guarantor guarantees the payment of all
principal, interest and other amounts, if
any, payable in respect of such Debt.
12. New Note Agreement Exhibits. Exhibits D, E and F to
the Note Agreements are replaced by Exhibits D, E and F hereto.
A new Exhibit H is added to the Note Agreements in the form of
Exhibit H hereto.
13. Fee. On the date hereof, the Company shall pay to the
Purchasers a fee in an aggregate amount equal to $24,000 to be
allocated pro-rata among the Purchasers based upon the relative
outstanding principal balance of each of their Notes.
14. No Other Amendments. Except as amended hereby, the
Notes and the Note Agreements shall remain in full force and
effect and be binding on the parties thereto in accordance with
their respective terms and are hereby ratified and reaffirmed.
15. Counterparts; Fax. This Amendment may be executed in
any number of counterparts and by different signatories thereto.
This Amendment may be executed and delivered by fax or other
electronic transmission.
16. Conformity with American General Note Agreement. The
Company has indicated that it contemplates entering into certain
financing transactions in the future with American General Life
Insurance Company and certain other lenders (collectively, the
"American General Lenders"). It is the intention and
understanding of the parties hereto that the covenants and
provisions contained in Sections 5, 6 and 7, respectively, of the
Note Agreement (and any corresponding definitions) are to conform
in all material respects with the covenants and provisions (and
any corresponding definitions) to be contained in any credit
agreement among the Company and the American General Lenders.
In the event the Company elects to enter into such financing
transactions with the American General Lenders (a) the Company
and the Purchasers agree to use their reasonable best efforts to
amend or restate (at the Company's option) the Note Agreement to
the extent necessary to so conform the aforementioned covenants
and provisions in all material respects, and (b) the Company
agrees to deliver customary closing documents in connection with
such amendment or restatement including legal opinions, no
default certificates, new promissory notes and organizational
documents.
IN WITNESS WHEREOF, this Amendment has been executed and
delivered by the parties as of the date first above written.
NPC INTERNATIONAL, INC.
By:__________________________
Name:
Title:
NPC MANAGEMENT, INC.
By:__________________________
Name:
Title:
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By:__________________________
Name:
Title:
PACIFIC CORINTHIAN LIFE INSURANCE
COMPANY
By:__________________________
Name:
Title:
LUTHERAN BROTHERHOOD
By:__________________________
Name:
Title:
Exhibits to Fourth Amendment
Exhibit D - List of Agreements Restricting Debt
Exhibit E - NPC and its Subsidiaries, other than the Company
Exhibit F - Description of Debt
Exhibit H - Master Guaranty (including Exhibit A thereto)
Exhibit D
(List of Agreements Restricting Debt)
1. Amended and Restated Master Shelf and Assumption Agreement
dated as on or about the date hereof, between the Company
and The Prudential Insurance Company of America relating to
promissory notes in the original aggregate principal amount
of $60,000,000 issuable in accordance with the terms
thereof.
2. $15,000,000 Amended and Restated Revolving Credit Agreement
dated on or about the date hereof, between the Company and
Texas Commerce Bank National Association.
3. $185,000,000 Amended and Restated Revolving Credit Agreement
dated on or about the date hereof, among the Company,
various banks party thereto, and Texas Commerce Bank
National Association, as agent for such banks.
4. Note Agreements, each dated as of May 15, 1992, among the
Company, Massachusetts Mutual Life Insurance Company,
Pacific Mutual Life Insurance Company and PM Group Life
Insurance Company, as amended, relating to 7.58% promissory
notes in the original aggregate principal amount of
$25,000,000.
Exhibit E
(NPCI and its Subsidiaries, other than the Company)
1. NPCI. NPC International, Inc., a Kansas corporation,
formerly known as National Pizza Company.
2. Romacorp. Romacorp, Inc., a Delaware corporation
("Romacorp"), 100% of the Voting Securities of which are
owned by NPCI.
3. NPC Restaurants. NPC Restaurants LP, a Delaware limited
partnership ("NPC Restaurants"), the sole general partner of
which is NPCI, and the sole limited partner of which is the
Company. NPCI, as general partner, owns 1% of the Voting
Securities of NPC Restaurants, and the Company, as limited
partner, owns 99% of the voting Securities of NPC
Restaurants.
4. Roma Holdings. Roma Holdings, Inc., a Delaware corporation
("Roma Holdings"), 100% of the Voting Securities of which
are owned by Romacorp.
5. Roma Dining. Roma Dining LP, a Delaware limited partnership
("Roma Dining"), the sole general partner of which is
Romacorp, and the sole limited partner of which is Roma
Holdings. Romacorp, as general partner, owns 1% of the
Voting Securities of Roma Dining, and Roma Holdings, as
limited partner, owns 99% of the Voting Securities of Roma
Dining.
6. Roma Franchise. Roma Franchise Corporation, a Delaware
corporation, 100% of the Voting Securities of which are
owned by Romacorp.
7. Roma Systems. Roma Systems, Inc., a Delaware corporation,
100% of the Voting Securities of which are owned by
Romacorp.
8. Seattle Restaurant Equipment. Seattle Restaurant Equipment
Company, a Washington corporation, 100% of the Voting
Securities of which are owned by NPCI.
9. Roma Ft. Worth. Roma Ft. Worth, Inc., a Texas corporation,
100% of the Voting Securities of which are owned by
Romacorp.
10. Roma Bar Management. Roma Bar Management Corporation, a
Texas corporation, 100% of the Voting Securities of which
are owned by Romacorp.
11. Roma Huntington Beach. Roma Hunting Beach, Inc., a Delaware
corporation, 100% of the Voting Securities of which are
owned by Romacorp.
Exhibit F
(Description of Debt)
Amended and Restated Master Shelf and Assumption
Agreement dated on or about the date hereof, between
the Company and The Prudential Insurance Company
of America, relating to promissory notes in the
original aggregate principal amount of $60,000,000
issuable in accordance with the terms thereof. $30,000,000
$15,000,000 Amended and Restated Revolving Credit
Agreement dated on or about the date hereof, between
the Company and Texas Commerce Bank
National Association. $7,400,000
$185,000,000 Amended and Restated Revolving Credit
Agreement dated on or about the date hereof, among
the Company, various banks party thereto, and Texas
Commerce Bank National Association,
as agent for such banks. $89,000,000
Note Agreements, each dated as of May 15, 1992,
among the Company, Massachusetts Mutual
Life Insurance Company, Pacific Mutual Life
Insurance Company and PM Group Life Insurance
Company, as amended, relating to 7.58% promissory
notes in the original aggregate principal amount of
$25,000,000. $5,000,000
Exhibit H
MASTER GUARANTY
This Master Guaranty (the "Guaranty"), dated as of May 8,
1997 (and effective as of March 26, 1997), is executed and
delivered by NPC INTERNATIONAL, INC., a Kansas corporation,
ROMACORP, INC., a Delaware corporation, NPC RESTAURANTS LP, a
Delaware limited partnership, ROMA HOLDINGS, INC., a Delaware
corporation, ROMA DINING LP, a Delaware limited partnership, ROMA
FRANCHISE CORPORATION, a Delaware corporation, ROMA SYSTEMS,
INC., a Delaware corporation, SEATTLE RESTAURANT EQUIPMENT
COMPANY, a Washington corporation, ROMA FT. WORTH, INC., a Texas
corporation, ROMA BAR MANAGEMENT CORPORATION, a Texas
corporation, ROMA HUNTING BEACH, INC., a Delaware corporation,
and EACH OF THE PERSONS WHICH MAY BECOME A PARTY HERETO
(individually, a "Guarantor" and, collectively, the
"Guarantors"), to PACIFIC MUTUAL LIFE INSURANCE COMPANY, PACIFIC
CORINTHIAN LIFE INSURANCE COMPANY and LUTHERAN BROTHERHOOD
(individually, a "Purchaser" and, collectively, the
"Purchasers").
ARTICLE 1.
Section 1.1 Definitions. As used in this Guaranty, these
terms shall have these respective meanings:
"Company" means NPC Management, Inc., a Delaware
corporation, and its successors, assigns, trustees and
receivers.
"Note Agreements" means, collectively, each Note
Agreement dated as of March 30, 1993, as amended, between
the Company and each Purchaser whereby the Company has
agreed to issue to the Purchasers its 6.35% Senior Secured
Notes Due April 1, 2000 in the aggregate stated principal
amount of $20,000,000, as the same may be amended, restated,
consolidated or other modified from time to time.
"Debt" means the sum of all principal of, premium, if
any, and interest on the Notes, and all other amounts for
which the Company or any other Obligor is liable to the
Purchasers under the Note Agreements and the Notes. The
Debt includes interest and other obligations accruing or
arising in connection with the foregoing after (a)
commencement of any case under any bankruptcy or similar
laws by or against any Obligor or (b) the obligations of any
Obligor shall cease to exist by operation of law or for any
other reason.
"Dollars" and "$" means lawful money of the United
States of America.
"Guaranteed Debt" means, as to any Guarantor, the
Maximum Amount, less the amounts, if any, of payments of the
Guaranteed Debt made by such Guarantor and clearly
identified as such in a notice accepted in writing by a
Purchaser confirming the payment and reduction of the
Guaranteed Debt as to such Guarantor.
"Guarantor's Net Worth" means, as to any Guarantor,
(a) the fair value of the property of such Guarantor from
time to time (taking into consideration the value, if any,
of rights of subrogation, contribution and indemnity), plus
(b) such Guarantor's rights under any contribution
agreement, minus (c) the total liabilities of such Guarantor
(including contingent liabilities [discounted in appropriate
instances], but excluding liabilities of such Guarantor
under this Guaranty) from time to time. It is agreed that a
Guarantor's Net Worth may fluctuate from time to time after
the date hereof as it is determined on each Determination
Date (as defined int he definition of "Maximum Amount").
"Joinder Agreement" means each Joinder Agreement from
time to time executed and delivered to the Purchasers by a
Subsidiary of NPCI, pursuant to the terms of the Note
Agreements, for the purpose, among others, of becoming an
additional Guarantor hereunder, substantially in the form of
Exhibit A attached hereto.
"Maximum Amount" means, with respect to any Guarantor,
the greater of (a) all proceeds (without duplication)
of the Debt directly or indirectly (by intercompany loan,
advance, capital contribution, such Guarantor's ownership
interest in any Person receiving the proceeds of the Debt,
or otherwise) advanced to or for the amount of, or used by
or for the benefit of, such Guarantor; (b) ninety-five
percent (95%) of Guarantor's Net Worth from time to time; or
(c) the amount that in a legal proceeding brought within the
applicable limitations period is determined by the final,
nonappealable order of a court having jurisdiction over the
issue and the applicable parties to be the amount of value
given by the Purchasers, or received by such Guarantor, in
exchange for the obligations of Guarantor under this
Guaranty. If on any date after the date hereof (any such
date being herein called a "Determination Date"), ninety-
five percent (95%) of such Guarantor's Net Worth is greater
than either of the amounts described in clauses (a) and (c)
above, the Maximum Amount shall be deemed to have increased
through and as of such Determination Date to ninety-five
percent (95%) of such Guarantor's Net Worth as determined on
such Determination Date (and the Guaranteed Debt as to such
Guarantor shall have correspondingly increased), without
further action by or agreement between the Purchasers and
such Guarantor, and any subsequent reduction or diminution
of such Guarantor's Net Worth after such Determination Date
will not reduce the Guaranteed Debt as to such Guarantor.
Notwithstanding anything to the contrary contained in this
definition of "Maximum Amount" or in any other provision of
this Guaranty, the "Maximum Amount" shall never be less than
the amount referred to in clause (a) above.
"Note Documents" means the Note Agreements and the
Notes.
"Obligor" means any person or entity now or hereafter
primarily or secondarily obligated to pay all or any part of
the Debt, including the Company and each Guarantor.
Unless redefined in this Guaranty, capitalized terms used in this
Guaranty have the respective meanings ascribed to them in the
Note Agreements.
ARTICLE 2.
Section 2.1 Execution of Note Documents. Company has
executed and delivered the Note Documents to the Purchasers.
Section 2.2 Consideration. In consideration of the credit
and financial accommodations extended to Company by the
Purchasers pursuant to the Note Documents or otherwise, which
each Guarantor has determined will substantially benefit it
directly or indirectly, and for other good and valuable
consideration, the receipt and sufficiency of which each
Guarantor hereby acknowledges, each Guarantor executes and
delivers this Guaranty to the Purchasers with the intention of
being presently and legally bound by its terms.
ARTICLE 3.
Section 3.1 Payment Guaranty. Guarantors, as primary
obligors and not as sureties, unconditionally, jointly and
severally, guarantee to the Purchasers, for their pro-rata
benefit in accordance with their respective rights under the Note
Documents, the full, prompt and punctual payment of the Debt when
due (whether at its stated maturity, by acceleration or
otherwise) in accordance with the Note Documents, to the extent
set forth herein. This Guaranty is irrevocable, unconditional
and absolute, and if for any reason all or any portion of the
Debt shall not be paid when due, Guarantors, jointly and
severally, will immediately pay the Debt to the Purchasers or
other Person entitled to it, in Dollars, regardless of (a) any
defense, right of set-off or counterclaim which any Obligor may
have or assert, (b) whether any Purchaser or any other Person
shall have taken any steps to enforce any rights against any
Obligor or any other Person to collect any of the Debt, and (c)
any other circumstance, condition or contingency.
Notwithstanding any provision of this Guaranty or the Note
Documents to the contrary, to the extent that in a legal
proceeding brought within the applicable limitations period it is
determined by the final, nonappealable order of a court having
jurisdiction over the issue and the applicable parties that any
Guarantor received less than a reasonably equivalent value in
exchange for such Guarantor's incurrence of its obligations under
this Guaranty, then and only then the total liability of such
Guarantor under this Guaranty shall be limited to the Guaranteed
Debt applicable to such Guarantor. The Purchasers shall have the
right to determine and designate from time to time, without
notice or assent of Guarantor, which portions of the Debt shall
be deemed included in the Guaranteed Debt. Each Guarantor
acknowledges that such determination and designation shall be
conclusive, absent manifest error. This Guaranty shall not fail
or be ineffective or invalid or be considered too indefinite or
contingent with respect to any Guarantor because the Guaranteed
Debt applicable to such Guarantor may fluctuate from time to time
or for any other reason.
Section 3.2 Application of Payments or Prepayments. The
parties hereto agree that any payment or prepayment by the
Company or any other Person against the Debt (other than payments
made by a Guarantor in accordance with the procedures described
in the definition of "Guaranteed Debt" herein and then only with
respect to such Guarantor's liability hereunder) shall be deemed
paid first against the portion of the Debt not included in
"Guaranteed Debt" or determined for any reason not to be a part
of "Guaranteed Debt," and then shall be paid against any portion
of the Debt that is Guaranteed Debt, in such order and manner as
the Purchasers shall determine in their sole discretion.
Section 3.3 Obligations Not Affected. The Guarantors'
covenants, agreements and obligations under this Guaranty shall
in no way be released, diminished, reduced, impaired or otherwise
affected by reason of the happening from time to time of any of
the following things, for any reason, whether by voluntary act,
operation of law or order of any competent governmental authority
and whether or not the Guarantors are given any notice or are
asked for or give any further consent (all requirements for
which, however arising, each Guarantor hereby WAIVES to the
fullest extent permitted by applicable law):
3.3.1 release or waiver of any obligation or duty
to perform or observe any express or implied agreement,
covenant, term or condition imposed in any of the Note
Documents or by applicable law on any Obligor or any party
to the Note Documents;
3.3.2 extension of time for payment of any part of
the Debt or any other sums payable under the Note Documents,
extension of the time for performance of any other
obligation under or arising out of or in connection with the
Note Documents or change in the manner, place or other terms
of such payment or performance;
3.3.3 settlement or compromise of any or all of the
Debt;
3.3.4 renewal, supplementing, modification,
rearrangement, amendment, restatement, replacement,
cancellation, rescission, revocation or reinstatement
(whether or not material) of any part of any of the Note
Documents or any obligations under the Note Documents of any
Obligor or any other party to the Note Documents (without
limitation on the number of times any of the foregoing may
occur);
3.3.5 acceleration of the time for payment or
performance of any Debt or other obligation under any of the
Note Documents or exercise of any other right, privilege or
remedy under or in regard to any of the Note Documents;
3.3.6 failure, omission, delay, neglect, refusal or
lack of diligence by any Purchaser or any other Person to
assert, enforce, give notice of intent to exercise--or any
other notice with respect to--or exercise any right,
privilege, power or remedy conferred on any Purchaser
or any other Person in any of the Note Documents or by law or
action on the part of any Purchaser or any other Person granting
indulgence, grace, adjustment, forbearance or extension of any
kind to any Obligor or any other Person;
3.3.7 release, surrender, exchange, subordination
or loss of any security or lien priority under any of the
Note Documents or in connection with the Debt;
3.3.8 release, modification or waiver of, or
failure, omission, delay, neglect, refusal or lack of
diligence to enforce, any guaranty, pledge, mortgage, deed
of trust, security agreement, lien, charge, insurance
agreement, bond, letter of credit or other security device,
guaranty, surety or indemnity agreement whatsoever;
3.3.9 taking or acceptance of any other security or
guaranty for the payment or performance of any or all of the
Debt or the obligations of any Obligor;
3.3.10 release, modification or waiver of, or
failure, omission, delay, neglect, refusal or lack of
diligence to enforce, any right, benefit, privilege or
interest under any contract or agreement, under which the
rights of any Obligor have been collaterally or absolutely
assigned, or in which a security interest has been granted,
to any Purchaser as direct or indirect security for payment
of the Debt or performance of any other obligations to--or
at any time held by--any Purchaser;
3.3.11 voluntary or involuntary liquidation,
dissolution, sale of any collateral, marshaling of assets
and liabilities, change in corporate or organization status,
receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement,
composition or readjustment of debt or other similar
proceedings of or affecting any Obligor or any of the assets
of any Obligor, even if any of the Debt is thereby rendered
void, unenforceable or uncollectible against any other
Person;
3.3.12 occurrence or discovery of any irregularity,
invalidity or unenforceability of any of the Debt or Note
Documents or any defect or deficiency in any of the Debt or
Note Documents, including the unenforceability of any
provisions of any of the Note Documents because entering
into any such Note Document was ultra xxxxx or because
anyone who executed them exceeded their authority;
3.3.13 failure to acquire, protect or perfect any
lien or security interest in any collateral intended to
secure any part of the Debt or any other obligations under
the Note Documents or failure to maintain perfection;
3.3.14 failure by any Purchaser or any other Person
to notify--or timely notify--any Guarantor of any default,
event of default or similar event (however denominated)
under any of the Note Documents, any renewal, extension,
supplementing, modification, rearrangement, amendment,
restatement, replacement, cancellation, rescission,
revocation or reinstatement (whether or not material) or
assignment of any part of the Debt, release or exchange of
any security, any other action taken or not taken by any
Purchaser against any Obligor or any other Person or any
direct or indirect security for any part of the Debt or
other obligation of Company, any new agreement between any
Purchaser and any Obligor or any other Person or any other
event or circumstance. Except as required by applicable
law, no Purchaser has any duty or obligation to give any
Guarantor any notice of any kind under any circumstances
whatsoever with respect to or in connection with the Debt or
the Note Documents;
3.3.15 occurrence of any event or circumstances
which might otherwise constitute a defense available to, or
a discharge of, any Obligor, including failure of
consideration, fraud by or affecting any Person, usury,
forgery, breach of warranty, failure to satisfy any
requirement of the statute of frauds, running of any statute
of limitation, accord and satisfaction and any defense based
on election of remedies of any type; and
3.3.16 receipt and/or application of any proceeds,
credits or recoveries from any source, including any
proceeds, credits, or amounts realized from exercise of any
rights, remedies, powers or privileges of any Purchaser
under the Note Documents, by law or otherwise available to
any Purchaser except only as and to the extent the same
reduces the Guaranteed Debt pursuant to and in accordance
with other express provisions of this Guaranty.
Section 3.4 Waiver of Certain Rights and Notices. To the
fullest extent permitted by applicable law, each Guarantor hereby
WAIVES and RELEASES all right to require marshaling of assets and
liabilities, sale in inverse other of alienation, notice of
acceptance of this Guaranty and of any liability to which it
applies or may apply, notice of the creation, accrual, renewal,
increase, extension, modification, amendment or rearrangement of
any part of the Debt, presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of intent to
accelerate, notice of acceleration and all other notices and
demands, collection, suit and the taking of any other action by
any Purchaser.
Section 3.5 Not a Collection Guaranty. This is an absolute
guaranty of payment, and an absolute guaranty of performance of
all of the obligations of the Obligors under the Note Documents,
and not of collection, and to the fullest extent not prohibited
by applicable law, each Guarantor WAIVES any right to require
that any action be brought against any Obligor or any other
Person, or that any Purchaser be required to enforce, attempt to
enforce or exhaust any rights, benefits or privileges of any
Purchaser under any of the Note Documents, by law or otherwise;
provided that nothing herein shall be construed to prevent any
Purchaser from exercising and enforcing at any time any right,
benefit or privilege which any Purchaser may have under any Note
Document or by law from time to time, and at any time, and
Guarantors agree that Guarantors' obligations hereunder are--and
shall be--absolute, independent, unconditional, joint and several
under any and all circumstances. Should any Purchaser seek to
enforce Guarantors' obligations by action in any court, to the
fullest extent not prohibited by applicable law, each Guarantor
WAIVES any requirement, substantive or procedures, that (a) any
Purchaser pursue any foreclosure action, realize or attempt to
realize on any security or preserve or enforce any deficiency
claim against any Obligor or any other Person after any such
realization, (b) a judgment first be sought or rendered against
any Obligor or any other Person, (c) any Obligor or any other
Person be joined in such action or (d) a separate action be
brought against any Obligor or any other Person. Guarantors'
obligations under this Guaranty are several from those of any
other Obligor or any other Person. Guarantors' obligations under
this Guaranty are several from those of any other Obligor or any
other Person, and are primary obligations concerning which
Guarantors are the principal obligors. All waivers in this
Guaranty or any of the Note Documents shall be without prejudice
to any Purchaser at its option to proceed against any Obligor or
any other Person, whether by separate action or by joinder.
Guarantors agree that this Guaranty shall not be discharged
except by payment of the Debt in full, complete performance of
all obligations of the Obligors under the Note Documents and
termination of each Purchaser's obligation--if any--to make any
further advances under the Note Documents or extend other
financial accommodations to any Obligor.
Section 3.6 Subrogation. Each Guarantor agrees that to the
extent not prohibited by applicable law, it shall not be entitled
to be subrogated to any Purchaser's rights against any Obligor or
any other Person or offset rights held by any Purchaser for
payment of the Debt until final termination of this Guaranty.
Section 3.7 Reliance on Guaranty. All extensions of credit
and financial accommodations heretofore or hereafter made by any
Purchaser under or in respect of the Note Documents shall be
conclusively presumed to have been made in acceptance of this
Guaranty.
Section 3.8 Demands are Conclusive. Any demand by any
Purchaser under this Guaranty shall be conclusive, absent
manifest error, as to the matters therein stated, including the
amount due.
Section 3.9 Joint and Several. If any Person makes any
guaranty of any of the obligations guaranteed hereby or gives any
security for them, Guarantors' obligations hereunder shall be
joint and several with the obligations of such other Person
pursuant to such agreement or other papers making the guaranty or
giving the security.
Section 3.10 Payments Returned. Guarantors agree that, if
at any time all or any part of any payment previously applied by
any Purchaser to the Debt is or must be returned by any Purchaser-
-or recovered from any Purchaser--for any legally binding reason
(including the order of any bankruptcy court), to the extent not
prohibited by applicable law, this Guaranty shall automatically
be reinstated to the same effect as if the prior application had
not been made, and, in addition, each Guarantor hereby agrees, to
the extent not prohibited by applicable law, to indemnify each
Purchaser against, and to save and hold each Purchaser harmless
from any required return by any Purchaser--or recovery from any
Purchaser--of any such payment because of its being deemed
preferential under application bankruptcy, receivership or
insolvency laws, or for any other reason.
ARTICLE 4.
Each Guarantor warrants and represents as follows:
Section 4.1 Relationship to Company. Each Guarantor has
determined that it has substantially benefited, or may reasonably
expect to substantially benefit, directly or indirectly, from the
extension of credit to or for the benefit of the Company or any
other Guarantor pursuant to the Note Documents and, accordingly,
each Guarantor has benefited or will benefit from the incurrence
of its liability and obligations hereunder. The Company and each
Guarantor are separate legal entities but are under common
ownership control, conduct related businesses, enter into
business and financial transactions with one another
periodically, and, in general, have a commonality of interests.
The maintenance and improvement of Company's financial condition
is vital to sustaining its business and the transactions
contemplated in the Note Documents produce distinct and
identifiable financial and economic direct or indirect benefits
to it. Such identifiable benefits include: (i) the availability
to it of the proceeds of credit on an as needed basis by way of
intercompany loans and/or capital contributions for general
corporate or other purpose and (ii) the general improvement of
its financial and economic condition. It has had full and
complete access to the Note Documents and all other papers
executed by any Obligor or any other Person in connection with
the Debt, has reviewed them and is fully aware of the meaning and
effect of their contents. It is fully informed of all
circumstances which bear upon the risks of executing this
Guarantee and which a diligent inquire would reveal. It has
adequate means to obtain from Company on a continuing basis
information concerning Company's financial condition, and not
depending any Purchaser to provide such information, now or in
the future. It agrees that no Purchaser has any obligation to
provide such information, now or in the future. It agrees that
no Purchaser shall have an obligation to advise or notify it or
to provide it with any such data or information. The execution
and delivery of this Guaranty is not a condition precedent (and
no Purchaser has in any way implied that the execution of this
Guaranty is a condition precedent) to any Purchaser's making,
extending or modifying any loan or any other financial
accommodation to or for it. The Company and the Guarantors are
and intend to remain separate legal entities and nothing in this
Section 4.1 is intended or shall act to invalidate or impair the
separate corporate or other organizational existence or status of
the Company or any Guarantor.
Section 4.2 Proceedings. No bankruptcy or insolvency
proceedings are pending or contemplated by or against it.
ARTICLE 5.
Section 5.1 Covenants for the Benefit of the Purchasers.
Guarantors, jointly and severally, covenant and agree that, until
termination of the Note Agreement in accordance with its terms,
each Guarantor will promptly, after learning of any Default or
Event of Default, notify the Purchasers of it in writing,
specifying its nature, the period of its existence and what
action Guarantors are taking or propose to take with respect
thereto.
ARTICLE 6.
Section 6.1 Term. Subject to the automatic reinstatement
provisions of Article 3 above, this Guaranty shall terminate and
be of no further force or effect upon the termination of the Note
Documents and the indefeasible payment of the Debt in full in
cash.
ARTICLE 7.
Section 7.1 Default. If any Event of Default occurs under
the Note Agreements, then that shall automatically constitute
default under this Guaranty.
ARTICLE 8.
Section 8.1 Binding on Successors: No Assignment by
Guarantors. All guaranties, warranties, representations,
covenants and agreements in this Guaranty shall bind the
trustees, receivers, successors and assigns of each Guarantor and
shall ratably benefit the Purchasers, their respective successors
and assigns, and any other holder of any part of the Debt. No
Guarantor shall assign or delegate any of its obligations under
this Guaranty or any of the Note Documents without the express
prior written consent of the Purchasers.
Section 8.2 Subordination of Company's Obligations to
Guarantors. Each Guarantor agrees that if, for any reason
whatsoever, Company now or hereafter owes any Indebtedness,
directly or indirectly, to any Guarantor, or any Guarantor now or
hereafter owes any Indebtedness, directly or indirectly, to any
other Guarantor, all such Indebtedness, together with all
interest thereon and fees and other charges in connection
therewith, and all Liens securing any such Indebtedness shall at
all times be second, subordinate and inferior in right of
payment, in lien priority and in all other respects to the Debt
and fulfillment of any such indebted Guarantor's obligations
hereunder or under any of the Note Documents and all Liens from
time to time securing the Debt. The provisions of this Section
are in addition to, and cumulative of, any other provisions
contained in any Note Document or other document, instrument or
writing.
Section 8.3 Waiver of Suretyship Rights. By signing this
Guaranty or executing a Joinder Agreement, each Guarantor, to the
fullest extent not prohibited by applicable law, WAIVES each and
every right to which it may be entitled by virtue of any
suretyship law.
Section 8.4 Indemnification. To the fullest extent not
prohibited by applicable law, Guarantors, jointly and severally,
agree to indemnify, defend and hold the Purchasers and their
respective shareholders, directors, officers, agents, attorneys,
advisors and employees (collectively, the "Indemnified Parties")
harmless from and against any and all loss, liability,
obligation, damage, penalty, judgment, claim, deficiency,
expenses, action, suit, cost and disbursement of any kind or
nature whatsoever (including interest, penalties, attorneys' fees
and amounts paid in settlement) (the "Losses"), regardless of
whether caused in whole or in part by the negligence of any of
the Indemnified Parties, imposed on, incurred by or asserted
against the Indemnified Parties growing out of or resulting from
any Note Document or any transaction or event contemplated
therein, except to the extent determined by a final decision of a
court or competent jurisdiction that such Loss was due to the
gross negligence or willful misconduct of such Indemnified Party.
Any amount to be paid under this Section by Guarantors to any
Purchaser shall be a joint and several demand obligation owing by
Guarantors and shall bear interest from the date of expenditure
until paid at a per annum rate equal to 6.35%.
Section 8.5 Amendments in Writing. This Guaranty shall not
be changed orally but shall be changed only by agreement in
writing signed by each Guarantor and each Purchaser. Any waiver
or consent with respect to this Guaranty shall be effective only
in the specific instance and for the specific purpose for which
given. No course of dealing between the parties, no usage of
trade and no parole or extrinsic evidence of any nature shall be
used to supplement or modify any of the terms or provisions of
this Guaranty.
Section 8.6 Notices. Any notices or other communications
required or permitted to be given hereunder shall be given, made
and received in the manner provided in the Note Documents;
provided that with respect to the Guarantors, any such notices or
other communications shall be sent to them at the "Address for
Notices" specified below their respective names on the signature
pages hereof or on the signature pages of any Joinder Agreement
or at such other address as shall be designated by such recipient
in a notice to the other parties hereto given in accordances with
the Note Documents.
Section 8.7 Gender; "Including" is Not Limiting: Section
Headings. The masculine and neuter genders used in this Guaranty
each includes the masculine, feminine and neuter genders, and
the singular number includes the plural where appropriate, and
vice versa. Wherever the term "including" or a similar term is
used in this Guaranty, it shall be read as if it were written
"including by way of example only and without in any way limiting
the generality of the clause or concept referred to." The
headings used in this Guaranty are included for reference only
and shall not be considered in interpreting, applying or
enforcing this Guaranty.
Section 8.8 Offset Rights.
8.8.1 Guarantors agree that, in addition to (and
without limitation of) any right of set-off, bankers' lien
or counterclaim a Purchaser may otherwise have, to the
fullest extent not prohibited by applicable law, each
Purchaser shall be entitled, at its option, upon the
occurrence and during the continuance of an Event of Default
to offset balances held by it for the account of any
Guarantor at any of its offices, in Dollars or in any other
currency, against any obligations of Guarantors hereunder or
under any Note Document, which is not paid when due, in
which case it shall promptly notify the affected Guarantor
and the other Purchaser thereof, provided that such
Purchaser's failure to give such notice shall not affect the
validity thereof.
8.8.2 If a Purchaser shall obtain payment of any
obligation then due hereunder or under any Note Document to
such Purchaser, through the exercise of any right of set-
off, banker's lien, counterclaim or similar right, or
otherwise, it shall promptly purchase from the other
Purchasers participation in the obligations held by the
other Purchasers in such amounts, and make such other
adjustments from time to time as shall be equitable to the
end that all the Purchasers shall share the benefit of such
payment (net of any expenses which may be incurred by such
Purchaser in obtaining or preserving such benefit) pro rata
in accordance with the unpaid principal and interest on the
obligations then due to each of them. To such end all the
Purchasers shall make appropriate adjustments among
themselves (by the resale of participations sold or
otherwise) if such payment is rescinded or must otherwise be
restored.
8.8.3 Guarantors agree, that any Purchaser so
purchasing a participation in the obligations held by other
Purchasers may to the fullest extent it may effectively do
so under applicable law, exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect
to such participation as fully as if such Purchaser were a
direct holder of obligations in the amount of such
participation. Nothing contained herein shall require any
Purchaser to exercise any such right or shall affect the
right of any Purchaser to exercise, and retain the benefits
of exercising, any such right with respect to any other
indebtedness of Guarantors.
SECTION 8.9 CHOICE OF LAW. THIS GUARANTY SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS OF THE
STATE OF KANSAS AND THE UNITED STATES OF AMERICA FROM TIME TO
TIME IN EFFECT.
Section 8.10 Survival. The representations, covenants and
agreements set forth in this Guaranty shall continue and survive
until final termination of this Guaranty.
Section 8.11 Rights Cumulative: Delay Not Waiver. Any
Purchaser's exercise of any right, benefit or privilege under any
of the Note Documents or any other papers or at law or in equity
shall not preclude the concurrent or subsequent exercise of any
other present or future rights, benefits or privileges or any
Purchaser. The remedies provided in this Guaranty are cumulative
and not exclusive of any remedies provided by law, the Note
Documents or any other papers or in equity. No failure by any
Purchaser to exercise, and no delay in exercising, any right
under any Note Document or any other papers shall operate as a
waiver thereof.
Section 8.12 Severability. If any provision of this
Guaranty is held to be illegal, invalid or unenforceable under
present or future laws, the legality, validity and enforceability
of the remaining provisions of this Guaranty shall not be
affected thereby, and this Guaranty shall be liberally construed
so as to carry out the intent of the parties to it. Each waiver
in this Guaranty is subject to the overriding and controlling
rule that it shall be effective only if and to the extent that
(a) it is not prohibited by applicable law and (b) applicable law
neither provides for nor allows any material sanctions to be
imposed against any Purchaser for having bargained for and
obtained it.
Section 8.13 Entire Agreement. This Guaranty embodies the
entire agreement and understanding between Guarantors and the
Purchasers with respect to its subject matter and supersedes all
prior conflicting or inconsistent agreements, consents and
understandings relating to such subject matter. Guarantors
acknowledge and agree that there is no oral agreement between any
Guarantor and any Purchaser which has not been incorporated in
this Guaranty.
Section 8.14 Usury Not Intended: Savings Provisions.
Notwithstanding any provision to the contrary contained in any
Note Document, it is expressly provided that in no case or event
shall the aggregate of any amounts accrued or paid pursuant to
this Guaranty which under applicable laws are or may be deemed to
constitute interest ever exceed the maximum nonusurious interest
rate permitted by applicable Kansas or federal laws, which ever
permit the higher rate. In this connection, each Guarantor and
each Purchaser stipulate and agree that it is their common and
overriding intent to contract in strict compliance with
applicable usury laws. In furtherance thereof, none of the terms
of this Guaranty shall ever be construed to create a contract to
pay, as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the maximum rate permitted
by applicable laws. Guarantors shall never be liable for
interest in excess of the maximum rate permitted by applicable
laws. If, for any reason whatever, such interest paid or
received during the full term of the applicable indebtedness
produces a rate which exceeds the maximum rate permitted by
applicable laws, the Purchasers shall credit against the
principal of such indebtedness (or, if such indebtedness shall
have been paid in full, shall refund to the payor of such
interest) such portion of said interest as shall be necessary to
cause the interest paid to produce a rate equal to the maximum
rate permitted by applicable laws. All sums paid or agreed to be
paid to the Purchasers for the use, forbearance or detention of
money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread in equal parts
throughout the full term of the applicable indebtedness, so that
the interest rate is uniform throughout the full term of such
indebtedness. The provisions of this Section shall control all
agreements, whether now or hereafter existing and whether written
or oral, between any Guarantor and any Purchaser.
ARTICLE 9.
Section 9.1 It is contemplated by each Guarantor that
additional Subsidiaries of NPCI may from time to time become a
Guarantor hereunder (as required by the terms of the Note
Agreements) by their execution and delivery to the Purchasers of
a Joinder Agreement. Each Guarantor agrees, consents and
acknowledges that upon the execution and delivery to the
Purchasers by any such Subsidiary of a Joinder Agreement, such
Subsidiary shall become a Guarantor hereunder for all purposes,
jointly and severally liable hereunder as if such Subsidiary had
originally been a party hereto, without notice to any Guarantor
or any other Party.
THIS GUARANTY is executed as of the date first above
written.
Address for Notices: NPC INTERNATIONAL, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMACORP, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: NPC RESTAURANTS LP
000 Xxxx 00xx Xxxxxx By: NPC
International, Inc., general
partner
Xxxxxxxxx, XX 00000
By:
___________________________
Name:
Title:
Address for Notices: ROMA HOLDINGS, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMA DINING LP
000 Xxxx 00xx Xxxxxx By: Romacorp,
Inc., general partner
Xxxxxxxxx, XX 00000
By:
___________________________
Name:
Title:
Address for Notices: ROMA FRANCHISE
CORPORATION
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMA SYSTEMS, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: SEATTLE RESTAURANT
EQUIPMENT COMPANY
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMA FT. WORTH, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMA BAR MANAGEMENT
CORPORATION
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Address for Notices: ROMA HUNTINGTON BEACH,
INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000 By:_______________________
Name:
Title:
Exhibit A to Master Guaranty
JOINDER AGREEMENT
This JOINDER AGREEMENT (this "Joinder Agreement") is dated
effective as of _____________, 19___, and is executed and
delivered by ______________________________ (the "Joining
Guarantor"), a ____________________, to each of the Purchasers
under the Note Agreement referred to below.
Recitals
(a) NPC Management, Inc., a Delaware corporation (the
"Company"), is indebted to the Purchasers identified in three
separate Note Agreements, each dated as of March 30, 1993, as
amended, between NPC International, Inc. ("NPCI"), a Delaware
corporation formerly known as National Pizza Company, and each
such Purchaser, as amended (each a "Note Agreement" and,
collectively, the "Note Agreements"). The Company has assumed
the payment and performance of NPCI's obligations under the Note
Agreements. The Note Agreements relate to the 6.35% Senior Notes
due April 1, 2000 issued to the Purchasers in the aggregate
stated principal amount of $20,000,000 (collectively, and as
amended from time to time, the "Notes").
(b) Pursuant to the terms of the Note Agreements, NPCI and
certain Subsidiaries of NPCI executed and delivered to the
Purchasers a Master Guaranty dated as of May ___, 1997, pursuant
to which, among other things, each of such Subsidiaries, jointly
and severally, unconditionally guaranteed the payment of all of
the Debt (subject to certain limitations, as provided therein).
The Master Guaranty, as amended, modified, supplemented, joined
in and restated from time to time, is herein called the
"Guaranty." All Persons from time to time a party to the
Guaranty (whether originally or by joinder) are herein
collectively called the "Guarantors," and are each a "Guarantor,"
herein.
(c) Pursuant to the terms of the Note Agreements, the
Joining Guarantor is now required, among other things and subject
to certain terms and conditions, to join in the execution and
delivery to the Purchasers of the Guaranty by its execution and
delivery of this Joinder Agreement and otherwise by such action
as the Purchasers may reasonably require.
(d) In order to comply with such requirement, the Joining
Guarantor executes and delivers this Joinder Agreement.
NOW, THEREFORE, in consideration of the credit and
financial accommodations extended to Company pursuant to the
Notes or otherwise, which Joining Guarantor hereby agrees has
benefitted and shall continue to benefit Joining Guarantor and
its equity holders as described in the Guaranty, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Joining Guarantor hereby agrees,
assumes, ratifies, joins and acknowledges as follows:
1. Assumption. Joining Guarantor hereby unconditionally,
jointly and severally, assumes liability for all Guarantees,
covenants, warranties, representations, indemnifications,
obligations and other Indebtedness of Guarantors now existing or
which may hereafter arise under the Guaranty and shall be liable
therefor as through Joining Guarantor had originally been a party
to the Guaranty. Without limitation of the foregoing, Joining
Guarantor, as a primary obligor and not as a surety,
unconditionally, jointly and severally, guarantees unto the
Purchasers the payment of the Debt when due (whether at the
stated maturity, by acceleration or otherwise) in accordance with
the terms of the Note Documents. Notwithstanding the foregoing
and the other provisions of this Joinder Agreement, to the extent
that in a legal proceeding brought within the applicable
limitations period it is determined by the final, non-appealable
order of a court having jurisdiction over the issue and the
applicable parties that Joining Guarantor received less than a
reasonably equivalent value in exchange for such Joining
Guarantor's incurrence of its obligations under the Guaranty,
then and only then the liability of Joining Guarantor under the
Guaranty shall be limited to the Guaranteed Debt applicable to
such Joining Guarantor. The Purchasers shall have the right to
determine and designate from time to time, without notice or
assent of Joining Guarantor, which portions of the Debt shall be
deemed included in the Guaranteed Debt. Joining Guarantor
acknowledges that such determination and designation shall be
conclusive, absent manifest error. The Guaranty shall not fail
or be ineffective or invalid or be considered too indefinite or
contingent with respect to Joining Guarantor because the
Guaranteed Debt applicable to Joining Guarantor may fluctuate
from time to time or for any other reason. Any payment or
prepayment by Company or any other Person against the Debt (other
than payments made by a Guarantor in accordance with the
procedures described in the definition of "Guaranteed Debt" in
the Guaranty and then only with respect to such Guarantor's
liability thereunder) shall be deemed paid first against that
portion of the Debt not included in the "Guaranteed Debt" or
determined for any reason not to be a part of "Guaranteed Debt,"
and then shall be paid against any portion of the Debt that is
Guaranteed Debt, in such order and manner as the Purchasers shall
determine in their sole discretion.
2. Terms Ratified. Joining Guarantor hereby expressly
ratifies all guaranties, terms, covenants, representations,
warranties, agreements, provisions, indemnifications, WAIVERS,
RELEASES, restrictions, duties and responsibilities of Guarantors
under the Guaranty and agrees that they shall apply to Joining
Guarantor as if Joining Guarantor had executed the Guaranty and
that any reference to "Guarantors" or a "Guarantor" contained in
the Guaranty or the Note Documents shall mean, without
limitation, the Joining Guarantor.
3. Representations. Joining Guarantor (a) confirms that
it has received a copy of the Note Documents, together with such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Joinder Agreement; (b) agrees that it will, independently and
without reliance upon any Purchaser and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Note Documents, and (c) represents that the
value of the consideration received and to be received by Joining
Guarantor is reasonably worth at least as much as the liability
and obligation of such Joining Guarantor hereunder, and that such
liability and obligation may reasonably be expected to benefit
Joining Guarantor directly or indirectly. The board of directors
or similar governing body of Joining Guarantor has duly adopted
resolutions certifying that the execution, delivery and
performance of this Joinder Agreement (and the effect thereof)
will benefit Joining Guarantor and its equity holders.
4. No Impairment. Nothing herein shall in any manner
impair or extinguish the Guaranty or any of the Note Documents or
any lien or security interest now or hereafter securing the
payment of any of the indebtedness arising pursuant to the Note
Documents.
5. Conditions. This Joinder Agreement shall not become
effective until the Joining Guarantor shall have delivered to the
Purchasers each of the following:
(a) a certificate of the Secretary or any Assistant
Secretary of Joining Guarantor (or other officer or director
of Joining Guarantor which is authorized in Joining
Guarantors organizational documents to keep the minute book
or similar record of Joining Guarantor), in form and
substance satisfactory to the Purchasers, dated as of the
date hereof, as to (i) the resolutions of the board of
directors (or similar governing body) of the Joining
Guarantor authorizing the execution, delivery and
performance of this Joinder Agreement and of all instruments
contemplated herein to be executed and delivered by Joining
Guarantor in connection herewith (a copy of such resolutions
to be incorporated into such certificate), such certificate
to state that said copy is a true and correct copy of such
resolutions and that such resolutions were duly adopted and
have not been amended, superseded, revoked or modified in
any respect and remain in full force and effect as of the
date of such certificate; (ii) the election, incumbency and
signatures of the officer or officers (of other official) of
Joining Guarantor executing and delivering this Joinder
Agreement and each other instrument or document furnished in
connection herewith; (iii) Joining Guarantor's
organizational documents in effect as of the date hereof (a
copy thereof to be attached to the certificate), and (iv)
such other documents and information as the Purchasers shall
reasonably request; and
(b) a legal opinion from the legal counsel for Joining
Guarantor in form and substance satisfactory to the
Purchasers.
6. Governing Law. Unless otherwise specified therein,
this Joinder Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas and the United
States of America.
7. Survival: Parties Bound. All representations,
warranties, covenants and agreements made by or on behalf of the
Joining Guarantor in connection herewith shall survive the
execution and delivery of this Joinder Agreement and the Note
Documents, shall not be affected by any investigation made by any
Person, and shall bind the Joining Guarantor and its successors,
trustees, receivers and assigns and inure to the benefit of the
successors and assigns of each Purchaser. The term of this
Joinder Agreement shall be until the termination of the Guaranty
as to all parties thereto.
8. Captions. The headings and captions appearing in this Joinder
Agreement have been included solely for convenience and shall not be considered
in construing this Joinder Agreement.
9. Definitions. Terms used herein and not defined herein, but which are
defined in the Note Agreements or the Guaranty, shall have the meanings herein
assigned to them in the Note Agreements or the Guaranty, respectively.
10. Parties Bound. This Joinder Agreement shall bind and benefit the
parties hereto an their respective successors and assigns, except that Joining
Guarantor and Company may not assign their rights or obligations hereunder
without the prior written consent of the Purchasers.
11. Amendments, Etc. No amendment or waiver of any provision of this
Joinder Agreement or any Note Document, nor any consent to any departure by the
Joining Guarantor therefrom, shall in any event be effective unless the same
shall be agreed or consented to by the Purchasers and Joining Guarantor, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given, unless otherwise specifically provided
in the Note Agreements.
IN WITNESS WHEREOF, the Joining Guarantor has executed this Agreement as of
the date set forth above.
____________________________________
By:_________________________________
Name:
Title:
