Exhibit 4.3
THE MARCUS CORPORATION
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of May 15, 1998
Re: $5,000,000 6.66% Series B Senior Notes, Tranche A,
due May 15, 2013
and
$25,000,000 6.70% Series B Senior Notes, Tranche B,
due May 15, 2013
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
Dated as of
May 15, 1998
To the Purchaser named in
Schedule A hereto which is
a signatory of this Agreement
Ladies and Gentlemen:
This First Supplement to Note Purchase Agreements (the "First
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 $5,000,000
aggregate principal amount of its 6.66% Series B Senior Notes, Tranche A
due May 15, 2013 (the "Tranche A Notes") and $25,000,000 aggregate
principal amount of its 6.70% Series B Senior Notes, Tranche B due May 15,
2013 (the "Tranche B Notes" and together with the Tranche A Notes, the
"Series B Notes"). The Series B Notes, together with the Series A Notes
initially issued pursuant to the Note Agreements and each Series of
Additional Notes 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 B 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 $30,000,000 in aggregate principal amount of the
Series B 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 Ms. Xxxxxx Ludkee at (000) 000-0000 in the amount of the
purchase price at 11:00 A.M., Milwaukee, Wisconsin time, on May 22, 1998
or such later date (not later than [May 27, 1998)] as shall mutually be
agreed upon by the Company and the Purchasers of the Series B Notes (the
"Closing").
4. (a) Required Prepayments.
(i) Tranche A Notes. On May 15, 2003 and on each May 15
thereafter to and including May 15, 2012, the Company will prepay
$454,545 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 15, 2013. 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 15, 2013, and then
to the remaining scheduled principal payments, if any, in inverse
chronological order.
(ii) Tranche B Notes. On May 15, 2007 and on each May 15
thereafter to and including May 15, 2012, 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 15, 2013. 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 15, 2013, 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 B Notes pursuant to Section 8.5 of the Note Agreements or a
Partial Redemption of the Series B Notes all required prepayments on the
Series B Notes shall be adjusted as provided in Section 8.1(c) of the Note
Agreements.
(c) Optional Prepayments. The Series B 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 B Notes pursuant to the provisions of
Section 8.2 of the Note Agreements, the principal amount of the Series B
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 B 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 B Notes. The term "Make-Whole
Amount" means, with respect to any Series B 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 B
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 B Note of
any Tranche, the principal of such Series B 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.
"Discontinued Value" means, with respect to the Called Principal
of any Series B 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 B 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 B 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 B 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 B 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 B 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 obligations of each Purchaser to purchase and pay for the
Series B 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) A Private Placement Number shall have been obtained for the
Series B Notes.
6. 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 B Notes purchased by
such Purchaser.
7. The Company and each purchaser agrees to be bound by and comply
with the terms and provision of the Note Agreements for the benefit of the
holders of the Series B Notes as fully and as completely as if each
Purchaser were an original signatory to the Note Agreements.
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
Its: President
Accepted as of May 22, 1998 Printed Name: Xxxxxxx X. Xxxxxx
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx
Its: Authorized Representative
Printed Name: Xxxx X. Xxxxxxx
