NPC Management, Inc.
$50,000,000
7.94% Senior Guaranteed Notes Due May 1, 2006
________________________________
Note Agreement
_______________________________
Dated as of May 1, 1997
Table of Contents
(Not Part of Agreement)
Section Heading Page
Section 1. Authorization of Issue of Notes 1
Section 2. Purchase and Sale of Notes 2
Section 3. Conditions of Closing 2
Section 4. Prepayments 4
Section 5. Affirmative Covenants 6
Section 6. Negative Covenants 10
Section 7. Events of Default. 14
Section 8. Representations, Covenants and Warranties 18
Section 9. Representations of the Purchaser 24
Section 10. Definitions and Accounting Terms 24
Section 11. Miscellaneous 31
Attachments to Note Agreement:
Schedule I _ Names and Addresses of Purchasers and Amounts
of Commitments
Exhibit A _ Form of Note
Exhibit B-1 _ Form of Opinion of Company's Counsel
Exhibit B-2 _ Form of Notice of Election
Exhibit C _ Form of Opinion of Special Counsel
Exhibit D _ List of Agreements Restricting Debt
Exhibit E _ Subsidiaries of NPC International, Inc.
Exhibit F _ Description of Debt
Exhibit G _ Liens Existing as of the Date of Closing
Exhibit H _ Form of Master Guaranty
NPC Management, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Dated as of May 1, 1997
To the Purchaser named in Schedule I
which is a Signatory to this Agreement
Re:$50,000,000 7.94% Senior Guaranteed Notes Due May 1, 2006
__________________________________________
Gentlemen:
The undersigned, NPC Management, Inc., a Delaware
corporation (the "Company"), and NPC International Inc., a Kansas
corporation ("NPCI"), hereby, severally, agree with you as
follows:
.c.Section 1.Authorization of Issue of Notes; Other Agreement;.
Section 1. A. Authorization of Issue of Notes. The Company
will authorize the issue of its senior promissory notes (the
"Notes") in the aggregate principal amount of $50,000,000, to be
dated the date of issue thereof, to mature May 1, 2006, to bear
interest on the unpaid balance thereof from the date thereof
until the principal thereof shall have become due and payable at
the rate of 7.94% per annum, payable semiannually on the first
day of each November and May in each year (commencing November 1,
1997) and to bear interest on overdue principal (including any
overdue required or optional prepayment of principal) and
premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest at the rate of (i) 9.94% per
annum or (ii) the rate announced by Texas Commerce Bank National
Association as its "prime rate," whichever is greater, after the
due date, whether by acceleration or otherwise, until paid, and
to be substantially in the form of Exhibit A attached hereto.
The Notes (as defined below) are unconditionally guaranteed
pursuant to the Master Guaranty dated May 1, 1997. Interest on
the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months. The Notes are not subject to prepayment or
redemption at the option of the Company prior to their expressed
maturity dates except on the terms and conditions and in the
amounts and with the premium, if any, set forth in 4 of this
Agreement. The term "Notes" as used herein shall include each
Note delivered pursuant to any provision of this Agreement and
the separate agreement with the other purchaser named in Schedule
I and each Note delivered in substitution or exchange for any
such Note pursuant to any such provision. Capitalized terms used
herein have the meanings specified in 10. You and the other
purchasers named in Schedule I are hereinafter referred to as the
"Purchasers."
B. Other Agreements. Simultaneously with the execution
and delivery of this Agreement, the Company is entering into
similar agreements with the other Purchasers under which such
other Purchasers agree, severally, to purchase from the Company
the principal amount of Notes set opposite each such Purchaser's
name in Schedule I, and your obligation and the obligations of
the Company hereunder are subject to the execution and delivery
of similar agreements by the other Purchasers. This Agreement
and said similar agreements with the other Purchasers are herein
collectively referred to as the "Agreements." The obligations of
each Purchaser shall be several and not joint and no Purchaser
shall be liable or responsible for the acts of any other
Purchaser.
.c.Section 2.Purchase and Sale of Notes;.
Section 2. Purchase and Sale of Notes. The Company hereby
agrees to sell to you and, subject to the terms and conditions
herein set forth, you agree to purchase from the Company, the
aggregate principal amount of Notes set forth opposite your name
in Schedule I attached hereto at 100% of such aggregate principal
amount. The Company will deliver to you, at the offices of
Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
one or more Notes registered in your name, evidencing the
aggregate principal amount of the Notes to be purchased by you
and in the denomination or denominations specified with respect
to you in Schedule I attached hereto, against payment of the
purchase price thereof by transfer of immediately available funds
for credit to the Company's account # 00100532408 at Texas
Commerce Bank, National Association, 000 Xxxx Xxxxxx, Xxxxxxx, XX
00000, ABA # 000000000, on the date of closing, which shall be
May 14, 1997, or any other date (not later than May 28, 1997)
upon which the Company and you may mutually agree (the "Closing"
or the "Date of Closing").
.c.Section 3.Conditions of Closing;.
Section 3. Conditions of Closing. Your obligation to
purchase and pay for the Notes to be purchased by you hereunder
is subject to the satisfaction, on or before the Date of Closing,
of the following conditions:
A. Certain Documents. You shall have received the
following, each dated the Date of Closing:
(i) The Note(s), executed by the Company, to be
purchased by you;
(ii) Certified copies of the resolutions of the
Board of Directors or the Executive Committee of the
Board of Directors of the Company approving this
Agreement and the Notes, and of all documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement and the Notes;
(iii) A certificate of the Secretary or an
Assistant Secretary of the Company certifying the names
and true signatures of the officers of the Company
authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder;
(iv) Certified copies of the Articles of
Incorporation and bylaws of the Company;
(v) Certified copies of the resolutions of the
respective Board of Directors or the Executive
Committees thereof of each Guarantor approving this
Agreement, the Notes and the Master Guaranty, and all
of the documents evidencing other necessary corporate
action and governmental approvals, if any, with respect
to this Agreement, the Notes and the Master Guaranty;
(vi) A certificate of the respective Secretary or
the Assistant Secretary of each of the Guarantors
certifying the names and true signatures of the
officers thereof authorized to sign the Master Guaranty
(and, in the case of NPCI, this Agreement) and the
other documents to be delivered hereunder or under the
Master Guaranty;
(vii) Certified copies of the respective Articles
of Incorporation and bylaws of each Guarantor;
(viii) This Agreement, executed by the parties
hereto;
(ix) The Master Guaranty, executed by all of the
Guarantors;
(x) A favorable opinion of Shook, Hardy & Bacon
L.L.P., special counsel to the Company and the
Guarantors, satisfactory to you and substantially in
the form of Exhibit B-1 attached hereto and as to such
other matters as you may reasonably request;
(xi) A favorable opinion of Xxxxxxx and Xxxxxx,
special counsel to the Purchasers, satisfactory to you
and substantially in the form of Exhibit C attached
hereto and as to such other matters as you may
reasonably request; and
(xii) The Officers' Certificate, executed by an
officer of the Company and of NPCI, referred to in 3B.
B. Representations and Warranties; No Default. The
representations and warranties contained in 8 shall be true
on and as of the Date of Closing; there shall exist on the
Date of Closing no Event of Default or Default; the Company
and the Guarantors shall have performed all of their
respective obligations hereunder which are to be performed
on or prior to the Date of Closing; and the Company and NPCI
shall have delivered to you an Officers' Certificate, dated
the Date of Closing, to such effect.
C. Private Placement Number. On or prior to the Date
of Closing, special counsel to the Purchasers of the Notes
shall have duly made the appropriate filings with Standard
and Poor's CUSIP Service Bureau, as agent for the National
Association of Insurance Commissioners, in order to obtain a
private placement number for the Notes.
D. Certain Fees. On the Date of Closing, the Company
shall pay the reasonable fees and expenses of Xxxxxxx and
Xxxxxx, your special counsel, as of the Date of Closing.
Without limiting the foregoing, the Company also agrees to
pay, promptly upon the receipt of any supplemental
statements therefor, professional fees and separately
charged items of such special counsel unposted or not
incurred as of the Date of Closing.
E. Related Transaction. The Company shall have
consummated the sale of the entire principal amount of the
Notes scheduled to be sold on the Date of Closing pursuant
to this Agreement and the other agreements referred to in
1B.
F. Sharing Agreement. You shall have received from
the Company at least two (2) Business Days prior to the Date
of Closing a written description of all information
necessary to permit you to become a party to the Sharing
Agreement concurrently with the issue and sale of the Notes
hereunder.
G. Proceedings. All corporate and other proceedings
taken or to be taken in connection with the transactions
contemplated hereby and all documents incident thereto shall
be satisfactory in substance and form to you, and you shall
have received all such counterpart originals or certified or
other copies of such documents as you may reasonably
request.
.c.Section 4.Prepayments;.
Section 4. Prepayments. The Notes shall be subject to
prepayment only with respect to the required prepayments
specified in 4A and also under the circumstances set forth in
4B.
A. Required Prepayments. Until the Notes shall be
paid in full, the Company shall apply to the prepayment of
the Notes, without premium, the sum of $10,000,000 (each
being a "Required Prepayment") on May 1 of each of the years
2002, 2003, 2004 and 2005. Each Required Prepayment,
together with interest thereon to the applicable prepayment
date, shall become due on such prepayment date. Any
prepayment made by the Company pursuant to any other
provision of this 4 shall not reduce or otherwise affect
its obligation to make any prepayment required by this 4A.
The outstanding principal amount of the Notes, together with
interest accrued thereon, shall become due on the maturity
date of the Notes. The amount of each prepayment,
retirement, purchase or other acquisition of the Notes by
the Company or any Guarantor pursuant to 4B or 4E shall
reduce each of the then remaining required prepayments
pursuant to this 4A by a percentage equal to the aggregate
principal amount of the Notes so prepaid, retired, purchased
or otherwise acquired divided by the aggregate principal
amount of the Notes outstanding immediately prior to such
prepayment, retirement, purchase or other acquisition.
B. Optional Prepayment at Optional Prepayment Price.
The Notes shall be subject to prepayment, in whole or in
part (but if in part then in units in excess of $1,000,000),
at any time at the option of the Company, at the Optional
Prepayment Price with respect to the principal amount of
Notes to be prepaid, plus interest thereon to such
prepayment date. The Optional Prepayment Price shall be
determined as of two (2) Business Days prior to the date of
such prepayment pursuant to this 4B (the "Determination
Date").
C. Notice of Optional Prepayment. The Company shall
give the holder of each Note written notice of any
prepayment pursuant to 4B not less than ten (10) Business
Days prior to the prepayment date, specifying (i) such
prepayment date, (ii) the principal amount of the Notes, and
of the Notes held by such holder, to be prepaid on such
date, (iii) that a premium may be payable, (iv) the date
when the Optional Prepayment Price will be calculated, (v)
the estimated Optional Prepayment Price, and (vi) that such
prepayment is to be made pursuant to 4B. Notice of
prepayment having been given as aforesaid, the principal
amount of the Notes specified in such notice, together with
interest thereon to the prepayment date and together with
the premium, if any, herein provided, shall become due and
payable on such prepayment date; provided, however, that
such amounts shall not become due and payable if on or prior
to the Determination Date each holder of a Note shall have
received facsimile or telephonic notice (such telephonic
notice to be immediately confirmed in writing) from the
Company that the Company has determined not to make the
scheduled optional prepayment, whereupon the respective
rights and obligations of the parties hereunder shall
continue as if the notice of optional prepayment referred to
above had not been given. Two Business Days prior to the
prepayment date specified in such notice, the Company shall
provide each holder of a Note written notice by facsimile
transmission of the premium, if any, payable in connection
with such prepayment and, whether or not any premium is
payable, a reasonably detailed computation of the Optional
Prepayment Price.
D. Partial Payments Pro Rata. Upon any partial
prepayment of the Notes, the principal amount so prepaid
shall be allocated to all Notes at the time outstanding in
proportion to the respective outstanding principal amounts
thereof.
E. Retirement of Notes. The Company shall not, and
shall not permit any Guarantor to, prepay or otherwise
retire in whole or in part prior to their stated final
maturity (other than by prepayment pursuant to 4A or 4B or
upon acceleration of such final maturity pursuant to 7A),
or purchase or otherwise acquire, directly or indirectly,
Notes held by any holder unless the Company or such
Guarantor shall have offered to prepay or otherwise retire
or purchase or otherwise acquire, as the case may be, the
same proportion of the aggregate principal amount of Notes
held by each other holder of Notes at the time outstanding
upon the same terms and conditions. Any Notes so prepaid or
otherwise retired or purchased or otherwise acquired by the
Company or any Guarantor shall not be deemed to be
outstanding for any purpose under this Agreement.
.c.Section 5.Affirmative Covenants;.
Section 5. Affirmative Covenants. So long as any Note shall
remain unpaid or you shall have any commitment hereunder, the
Company and NPCI, severally, covenant that:
A. Financial Statements. NPCI will deliver to each
Significant Holder:
(i) as soon as practicable and in any event
within 50 days after the end of each quarterly period
(other than the last quarterly period) in each fiscal
year, consolidated statements of income, consolidated
statements of stockholder's equity and consolidated
statements of cash flows of NPCI and its Subsidiaries
for the period from the beginning of the current fiscal
year to the end of such quarterly period, and
consolidated balance sheets of NPCI and its
Subsidiaries as at the end of such quarterly period,
setting forth in each case in comparative form figures
for the corresponding period or as of the end of such
corresponding period, as applicable, in the preceding
fiscal year, all in reasonable detail, prepared in
accordance with generally accepted accounting
principles as then in effect applicable to quarterly
financial statements generally, and certified by an
authorized financial officer of NPCI and of the
Company, subject to changes resulting from year-end
adjustments; provided, however, that, so long as such
delivery is made within the time requirement set forth
above in this clause (i), delivery pursuant to clause
(iv) below of copies of the Quarterly Report on Form 10-
Q of NPCI for such quarterly period filed with the
Securities and Exchange Commission shall be deemed to
satisfy the requirements of this clause (i);
(ii) as soon as practicable and in any event
within 50 days after the end of each quarterly period
in each fiscal year (or, at the Company's option, more
frequently), balance sheets at the end of each fiscal
quarter and income statements for the period from the
beginning of the current fiscal year to the end of such
fiscal quarter for each Material Operating Group of
NPCI and its Subsidiaries (whether incorporated or
not), setting forth in each case in comparative form
figures as of the end of the corresponding period or
for the corresponding period, as applicable, in the
preceding fiscal year, all in reasonable detail,
prepared in accordance with generally accepted
accounting principles as then in effect applicable to
quarterly financial statements generally, and certified
by an authorized financial officer of NPCI and of the
Company as fairly presenting the financial condition
and operations of such divisions in accordance with
prior practices of NPCI consistently applied;
(iii) as soon as practicable and in any event
within 95 days after the end of each fiscal year,
consolidated statements of income, consolidated
statements of stockholder's equity and consolidated
statements of cash flows of NPCI and its Subsidiaries
for such year, and consolidated balance sheets of NPCI
and its Subsidiaries as at the end of such year,
setting forth in each case in comparative form
corresponding consolidating and consolidated figures
from the preceding annual audit, and certified to NPCI
by independent public accountants of recognized
national standing selected by NPCI whose certificate
shall state that such consolidated financial statements
fairly present the consolidated financial position of
NPCI and its Subsidiaries for said year in conformity
with generally accepted accounting principles as then
in effect and that the financial statements have been
audited in accordance with generally accepted auditing
standards, provided, however, that, so long as such
delivery is made within the time requirement set forth
above in this clause (iii), delivery pursuant to clause
(iv) below of copies of the Annual Report on Form 10-K
of NPCI for such fiscal year filed with the Securities
and Exchange Commission shall be deemed to satisfy the
requirements of this clause (iii);
(iv) promptly upon transmission thereof, copies of
all such financial statements, proxy statements,
notices and reports as NPCI shall send to its
stockholders and copies of all registration statements
(without exhibits) and all reports which NPCI files
with any securities exchange or the Securities and
Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and
Exchange Commission);
(v) promptly upon receipt thereof, a copy of each
other report submitted to the board of directors (or
the executive committee thereof) of the Company or any
Guarantor by independent accountants in connection with
any annual, interim or special audit made by them of
the books of the Company or any Guarantor;
(vi) promptly after the filing or receiving
thereof, copies of all reports and notices related to
any Plan, if any, which the Company or any Guarantor
may hereafter file under ERISA with the Internal
Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which
the Company or any Guarantor may hereafter received
from such corporation;
(vii) promptly after receipt of notice thereof by
the Company or after the Company obtains knowledge
thereof, notice of any default under any Franchise
Agreement and any notice received by the Company
pursuant to Article XXI. C. (or any similar provision
of any Franchise Agreement hereafter entered into by
the Company or any Guarantor) of the Franchise
Agreements in effect on the Date of Closing; and
(viii) with reasonable promptness, such other
information respecting the condition or operations,
financial or otherwise, of the Company or any
Guarantors as you may reasonably request.
Together with each delivery of financial statements required
by clauses (i) and (iii) above, NPCI will deliver to each
Significant Holder an Officers' Certificate demonstrating (with
computations in reasonable detail) compliance by NPCI, the
Company and the Guarantors with the financial covenants set forth
in 6 and stating that there exists no Event of Default or
Default, or, if any Event of Default or Default exists,
specifying the nature and period of existence thereof and what
action NPCI and the Company propose to take with respect thereto.
Together with each delivery of financial statements required by
clause (iii) above, NPCI will deliver to each Significant Holder
a certificate of such accountants stating that, in making the
audit necessary to the certification of such consolidated
financial statements, they have obtained no knowledge of any
Event of Default or Default, or, if they have obtained knowledge
of any Event of Default or Default, specifying the nature and
period of existence thereof. Such accountants, however, shall
not be liable to anyone by reason of their failure to obtain
knowledge of any Event of Default or Default which would not be
disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards. NPCI also covenants that
forthwith upon its President or Chief Financial Officer or
principal accounting officer obtaining knowledge of an Event of
Default or Default, it will deliver to each Significant Holder an
Officers' Certificate specifying the nature and period of
existence thereof and what action NPCI and the Company propose to
take with respect thereto. All certificates and reports required
to be delivered under this Agreement which pertain to financial
matters, including, without limitation, all financial statements
and calculations to determine covenant compliance, shall contain
a detailed reconciliation of the accounting principles applied in
the fiscal period or periods being reported upon and GAAP as
defined in Section 10A including a re-calculation of the terms
and provisions hereof affected by changes in GAAP after the Date
of Closing.
B. Inspection of Property. NPCI will permit any
Person designated by any Significant Holder in writing to
visit and inspect any of the properties of NPCI, the Company
and each Guarantor, to examine the corporate books and
financial records of NPCI, the Company and each Guarantor
and make copies thereof or extracts therefrom and to discuss
the affairs, finances and accounts of any of such
corporations with the principal officers of NPCI, the
Company and each Guarantor and their independent public
accountants (and by this provision NPCI and the Company
authorize said accountants to discuss with you the finances
and affairs of NPCI and the Company and each Guarantor), all
at such reasonable times and as often as such Significant
Holder may reasonably request. If and so long as no Default
or Event of Default then exists, any such visitation or
inspection shall be at the expense of the Significant Holder
making such visitation or inspection and if and so long as
any Default or Event of Default exists, any such visitation
or inspection shall be at the expense of NPCI and the
Company.
C. Covenant to Secure Notes Equally. If NPCI, the
Company or any Guarantor shall create or assume any Lien
upon any of its property or assets, whether now owned or
hereafter acquired, other than Liens permitted by the
provisions of 6C(1) (unless prior written consent to the
creation or assumption thereof shall have been obtained
pursuant to 11C), it will make or cause to be made
effective provision whereby the Notes will be secured by
such Lien equally and ratably with any and all other Debt
thereby secured so long as any such other Debt shall be so
secured. In the event NPCI, the Company or any Guarantor
shall propose to secure the Notes pursuant to this Section,
the mortgage or other instrument creating such Lien shall be
satisfactory in form and substance (including without
limitation the portion thereof pertaining to the release of
the collateral secured thereby and the application of the
proceeds from the sale or other disposition of such
collateral) to the holders of not less than 75% in aggregate
principal amount of the Notes then outstanding.
D. Compliance with Laws, Etc. NPCI will comply, and
cause the Company and each Guarantor to comply, in all
material respects with all applicable regulatory and
governmental laws, rules, regulations and orders the
noncompliance with which could result in a material adverse
effect on NPCI, the Company or the Guarantors taken as a
whole, such compliance to include, without limitation,
paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon
its property provided NPCI, the Company or such Guarantor
shall not be required to pay any such taxes, assessments or
governmental charges if (i) the validity, applicability or
amount thereof is being contested in good faith by
appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of NPCI, the Company or
such Guarantor or any material interference with the use
thereof by NPCI, the Company or such Guarantor, and (ii)
NPCI, the Company or such Guarantor shall set aside on its
books, reserves deemed by it to be adequate with respect
thereto.
E. Maintenance of Insurance. NPCI will maintain, and
cause the Company and each Guarantor to maintain, insurance
in such amounts, with such carriers, and against such
liabilities and hazards as is consistent with sound business
practices and as is customary in the case of entities of
established reputation engaged in the same or a similar
business and similarly situated.
F. Maintenance of Properties, Etc. NPCI will
maintain and preserve, and cause the Company and each
Guarantor to maintain and preserve, to the extent that a
failure to so maintain or preserve would have a material
adverse effect on NPCI, the Company or the Guarantors taken
as a whole (i) all of its or their properties which are used
or useful in the conduct of its business in good repair and
working order, ordinary wear and tear excepted and (ii) all
of its or their rights, title, licenses, trademarks and
other permits necessary for the conduct of their business.
G. Corporate Existence. NPCI will maintain, and
cause the Company and each Guarantor to maintain, its
corporate or other organization existence, as the case may
be.
H. Claims for Labor and Materials. NPCI will
promptly pay and discharge, and cause the Company and each
Guarantor promptly to pay and discharge, all trade accounts
payable in accordance with usual and customary business
terms, and all claims for work, labor or materials, which if
unpaid might become a Lien upon any property of NPCI, the
Company or such Guarantor; provided NPCI, the Company or
such Guarantor shall not be required to pay any such account
payable or claim if either (i) (a) the validity,
applicability or amount thereof is being contested in good
faith by appropriate actions or proceedings which will
prevent the forfeiture or sale of any property of NPCI, the
Company or such Guarantor or any material interference with
the use thereof by NPCI, the Company or such Guarantor, and
(b) NPCI, the Company or such Guarantor shall set aside on
its books, reserves deemed by it to be adequate with respect
thereto, or (ii) the failure to pay any such account payable
or claim would not have a material adverse effect on the
business, prospects, profits, properties or condition
(financial or otherwise) of NPCI, the Company and the
Guarantors taken as a whole.
.c.Section 6.Negative Covenants;.
Section 6. Negative Covenants. So long as any Note shall
remain unpaid or you shall have any commitment hereunder:
A. Consolidated Net Worth Requirement. NPCI
covenants that it will not permit Consolidated Net Worth at
any time to be less than the sum of (i) $86,000,000 plus
(ii) an amount equal to 50% of Consolidated Net Income
(without reduction for any deficit in Consolidated Net
Income for any quarterly fiscal period) for the period from
and after March 25, 1997 to and including the date of
determination thereof, computed on a cumulative basis for
said entire period.
B. Consolidated Fixed Charge Requirement. NPCI
covenants that, on the last day of each fiscal quarter, the
ratio of (a) Consolidated Net Income Available for Fixed
Charges to (b) Fixed Charges will be not less than 2.0 to
1.0, for the period consisting of the four (4) consecutive
fiscal quarters ending on the date of such determination.
X. Xxxx, Debt, and Other Restrictions.
(1) Liens. NPCI will not and will not permit the
Company or any Guarantor to create, assume or suffer to
exist any Lien upon any of its properties or assets,
whether now owned or hereafter acquired (whether or not
provision is made for the equal and ratable securing of
the Notes in accordance with the provisions of 5C),
except
(i) Liens for taxes or governmental charges
and Liens securing claims or demands of mechanics
and materialmen provided that payment is not at
the time required by 5D or 5H;
(ii) other Liens incidental to the conduct of
its business or the ownership of its property and
assets which are not incurred in connection with
the borrowing of money or the obtaining of
advances or credit, and which do not in the
aggregate materially detract from the value of its
property or assets or materially impair the use
thereof in the operation of its business;
(iii) survey exceptions which, when taken as a
whole, would not have a material adverse effect on
NPCI, the Company or the Guarantors;
(iv) Liens on property or assets of a
Guarantor (other than NPCI) to secure obligations
of such Guarantor to NPCI, the Company or another
Guarantor;
(v) Liens incurred after the Date of Closing
given to secure the payment of the purchase price
incurred in connection with the acquisition of
fixed assets useful and intended to be used in
carrying on the business of NPCI, the Company or a
Guarantor, including Liens existing on such fixed
assets at the time of acquisition thereof or at
the time of acquisition by NPCI, the Company or a
Guarantor of any business entity then owning such
fixed assets, whether or not such existing Liens
were given to secure the payment of the purchase
price of the fixed assets to which they attach so
long as they were not incurred, extended or
renewed in contemplation of such acquisition,
provided that (i) the Lien shall attach solely to
the fixed assets acquired or purchased, (ii) at
the time of acquisition of such fixed assets, the
aggregate amount remaining unpaid on all Debt
secured by Liens on such fixed assets whether or
not assumed by NPCI, the Company or a Guarantor
shall not exceed an amount equal to the total
purchase price at the time of acquisition of such
fixed assets, and (iii) all such Debt shall be
permitted by the applicable limitations provided
in 6C(2)(a) and (b); and
(vi) other Liens on the property of NPCI, the
Company or any Guarantor to secure Debt of NPCI,
the Company or any Guarantor, provided that
Consolidated Priority Debt does not at any time
exceed an amount equal to twenty-percent (20%) of
Consolidated Net Worth.
(2) Debt and Other Restrictions. (a) NPCI will
not at any time permit Consolidated Debt to exceed an
amount equal to (i) prior to and including the last day
of fiscal year 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.
(b) NPCI will not at any time permit Consolidated
Priority Debt to exceed an amount equal to twenty-
percent (20%) of Consolidated Net Worth.
(c) Any Person which becomes a Guarantor after
the date hereof shall for all purposes of this 6C(2)
be deemed to have created, assumed or incurred at the
time it becomes a Guarantor all Debt of such Person
existing immediately after it becomes a Guarantor.
(3) Restricted Investments. NPCI will not permit
the aggregate amount of Restricted Investments of NPCI,
the Company and the Guarantors at any time outstanding
to be greater than ten percent (10%) of Consolidated
Net Worth.
(4) Interest and Rents Coverage. On the last day
of each fiscal quarter, NPCI will not permit the ratio
of (a) Consolidated Pro Forma EBITDA plus the
consolidated operating lease rental expense of NPCI and
its Subsidiaries to (b) Fixed Charges, to be 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
6C(4), NPCI shall make the calculation required under
6C(4) 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.
(5) Sale of Stock and Debt of Guarantors. NPCI
will not permit the Company or any Guarantor to sell or
otherwise dispose of, or part with control of, any
shares of stock (which constitute or upon issuance will
constitute more than 5% of the outstanding shares of
stock of the Company or any Guarantor (excluding NPCI))
or Debt of the Company or any Guarantor (excluding
NPCI), except to NPCI, the Company or another
Guarantor, and except that all shares of stock of a
Guarantor together with all Debt of such Guarantor owed
to the Company and any other Guarantor may be sold as
an entirety for a cash consideration which represents
the fair value (as determined in good faith by the
Board of Directors of NPCI) at the time of sale of the
shares of stock and Debt so sold, provided that the
assets of such Guarantor could be sold within the
limitations of 6C(6) and that the earnings of such
Guarantor shall not have constituted more than 5% of
Consolidated Net Income for any of the three fiscal
years then most recently ended, and provided further
that, at the time of such sale, such Guarantor shall
not own, directly or indirectly, any shares of stock or
Debt of any other Guarantor (unless all of the shares
of stock and Debt of such other Guarantor owned,
directly or indirectly, by the Company and all
Guarantors are simultaneously being sold as permitted
by this 6C) or any Debt of NPCI or the Company.
(6) Merger and Sale of Assets. NPCI will not and
will not permit the Company or any Guarantor to merge
or consolidate with or into any other Person or during
any 12 month period, sell, lease, transfer or otherwise
dispose of any assets (other than in the ordinary
course of business) which in the aggregate have a book
value in excess of 5% of the consolidated assets of
NPCI and its Subsidiaries to any Person (determined as
of the end of the fiscal year immediately preceding the
date of such sale or disposition), except that
(i) NPCI or the Company may consolidate or
merge with any other corporation if (x) NPCI or
the Company shall be the surviving or continuing
corporation and (y) at the time of such
consolidation or merger and after giving effect
thereto no Default or Event of Default shall have
occurred and be continuing, including any Default
or Event of Default under 6C(2)(a) or (b);
(ii) any Guarantor (other than NPCI) may
merge with NPCI or the Company (provided that NPCI
or the Company shall be the continuing or
surviving corporation) or with any one or more
other Guarantors;
(iii) any Guarantor may sell, lease, transfer
or otherwise dispose of any of its assets to NPCI,
the Company or any other Guarantor, and the
Company may sell, lease, transfer or otherwise
dispose of any of its assets (other than any
Franchise Agreement or interest therein) to any
Guarantor; and
(iv) any Guarantor (other than NPCI) may
sell, or otherwise dispose of all or substantially
all of its assets subject to the conditions
specified in 6C(5) with respect to a sale of the
stock of such Guarantor.
Nothing in 6C(3) or 6C(7) shall prohibit or otherwise
impair the ability of the Company or any Guarantor to sell,
lease transfer or otherwise dispose of assets to the extent
such sale, lease, transfer or other disposition is permitted
under 6C(6)(iii).
(7) Transactions with Affiliates. NPCI will not,
and will not permit the Company or any Guarantor to,
enter into or be a party to any transaction or
arrangement with any Affiliate (including, without
limitation, the purchase from, sale to or exchange of
property with, or the rendering of any service by or
for, any Affiliate), except upon fair and reasonable
terms no less favorable to NPCI, the Company or such
Guarantor than would obtain in a comparable arm's-
length transaction with a Person other than an
Affiliate.
(8) Franchise Rights. NPCI will not and will not
permit the Company or any Guarantor to take any action
or fail to take any action which results in the loss of
any franchise agreement, license, or other permit which
would preclude NPCI, the Company or such Guarantor from
operating such franchise under the name "Pizza Hut," or
such other names as are designated in the respective
franchise agreements if such loss materially adversely
affects the business operations or profitability of
NPCI or the Company and such Guarantors taken as a
whole. In addition to, and not in limitation of, the
foregoing restrictions, NPCI shall, and shall cause
each Subsidiary which is a Pizza Hut franchisee to,
(i) in the case of any such Subsidiary, on or before
June 30, 1997, amend its organizational documents and
other agreements to the extent necessary to comply with
the provisions of its respective franchise agreement
relating to restrictions on the disposition of
ownership interests and (ii) in the case of NPCI, on or
before June 30, 1997 amend its organizational documents
and other agreements to the extent necessary to comply
with provisions of its respective franchise agreement
relating to restrictions on the disposition of
ownership interests or, in the alternative in the case
of NPCI, deliver to the holders and maintain in full
force and effect the agreement of Pizza Hut, Inc.
substantially in the form of the letter agreement dated
May 14, 1997, attached hereto as Exhibit I, without
material breach or violation of such letter agreement.
(9) Nature of Business. NPCI will not and will
not permit the Company or any Guarantor to engage in
any business, if as a result the general nature of the
business, taken on a consolidated basis, which would
then be engaged in by NPCI, the Company and the
Guarantors would be substantially changed from the
general nature of the business engaged in by the
Company and the Guarantors as presented in the Private
Placement Memorandum dated April, 1997 prepared by
Xxxxxx X. Xxxx & Company (the "Memorandum").
(10) Sale or Discount of Receivables. NPCI will
not permit the Company or any Guarantor to sell with
recourse or discount or otherwise sell or transfer for
less than the face value thereof any notes or accounts
receivables of NPCI, the Company or any Guarantor.
(11) Fees and Compensation. NPCI will not permit
the Company or any Guarantor to compensate, directly or
indirectly, through salary, bonus or otherwise any of
its respective officers, directors, employees or
stockholders in amounts which are in excess of fair and
reasonable compensation paid for similar services
rendered by such officers, directors, employees and
stockholders by business substantially similar to NPCI,
the Company and the Guarantors.
.c.Section 0.Xxxxxx of Default.
Section 7. Events of Default.
A. Acceleration. If any of the following events
shall occur and be continuing for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or
come about or be effected by operation of law or otherwise):
(i) the Company defaults in the payment of any
principal of or premium on any Note when the same shall
become due, either by the terms thereof or otherwise as
herein provided; or
(ii) the Company defaults in the payment of any
interest on any Note and such default continues for
more than five (5) Business Days after the date due; or
(iii) the Company or any Guarantor defaults in any
payment of principal of or interest on any other
obligation for money borrowed (or any Capitalized Lease
Obligation, any obligation under a conditional sale or
other title retention agreement, any obligation issued
or assumed as full or partial payment for property
whether or not secured by a purchase money mortgage or
any obligation under notes payable or drafts accepted
representing extensions of credit) beyond any period of
grace provided with respect thereto, or the Company or
any Guarantor fails to perform or observe any other
agreement, term or condition contained in any agreement
under which any such obligation is created (or if any
other event of default thereunder or under any such
agreement shall occur and be continuing) and the effect
of such failure or other event of default is to cause,
or to permit the holder or holders of such obligation
(or a trustee on behalf of such holder or holders) to
cause, such obligation to become due (or to be
repurchased by the Company or any Guarantor) prior to
any stated maturity or the Company or any Guarantor
fails to pay any Guaranty in accordance with its terms,
provided that the aggregate amount of all obligations
as to which such a payment default shall occur and be
continuing or such a failure or other event causing or
permitting acceleration (or resale to the Company or
any Guarantor) shall occur and be continuing exceeds
$2,500,000; or
(iv) any representation or warranty made by the
Company or any Guarantors herein or in the Master
Guaranty or by the Company, any Guarantor or any of its
officers in any writing furnished in connection with or
pursuant to this Agreement or the Master Guaranty shall
be false in any material respect on the date as of
which made; or
(v) the Company fails to perform or observe any
term, covenant or agreement contained in 6 and such
failure shall not be remedied within five (5) Business
Days after any officer of the Company obtains actual
knowledge thereof or receives written notice thereof,
whichever occurs first; or
(vi) any Guarantor fails to perform or observe any
agreement, covenant, term or condition contained in the
Master Guaranty; or
(vii) the Company fails to perform or observe any
other material agreement, covenant, term or condition
contained herein and such failure shall not be remedied
within 30 days after any officer of the Company obtains
actual knowledge thereof or receives any written notice
thereof, whichever occurs first; or
(viii) the Company or any Guarantor makes an
assignment for the benefit of creditors or is generally
not paying its debts as such debts become due; or
(ix) any decree or order for relief in respect of
the Company or any Guarantor is entered under any
bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt (with respect to the
bankruptcy or insolvency of the Company or any
Guarantor), dissolution or liquidation or similar law,
whether now or hereafter in effect (herein called the
"Bankruptcy Law"), of any jurisdiction and such decree
or order for relief remains unstayed or in effect for
more than 30 days; or
(x) the Company or any Guarantor petitions or
applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or similar official of
the Company or any Guarantor, or of any substantial
part of the assets of the Company or any Guarantor, or
commences a voluntary case under the Bankruptcy Law of
the United States or any proceedings (other than
proceedings for the voluntary liquidation and
dissolution of a Subsidiary (other than the Company) of
NPCI provided that such liquidation or dissolution
would otherwise be permitted hereunder) relating to the
Company or any Subsidiary under the Bankruptcy Law of
any other jurisdiction; or
(xi) any such petition or application is filed, or
any such proceedings are commenced, against the Company
or any Guarantor and the Company or such Guarantor by
any act indicates its approval thereof, consent thereto
or acquiescence therein, or an order, judgment or
decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or
approving the petition in any such proceedings, and
such order, judgment or decree remains unstayed and in
effect for more than 30 days; or
(xii) any order, judgment or decree is entered in
any proceedings against NPCI or the Company decreeing
the dissolution of NPCI or the Company and such order,
judgment or decree remains unstayed and in effect for
more than 30 days; or
(xiii) any order, judgment or decree is entered in
any proceedings against the Company or any Guarantor
decreeing a split-up of the Company or such Guarantor
which requires the divestiture of assets representing a
substantial part, or the divestiture of the stock of a
Guarantor whose assets represent a substantial part, of
the consolidated assets of NPCI and its Subsidiaries
(determined in accordance with generally accepted
accounting principles) or which requires the
divestiture of assets, or stock of a Guarantor, which
shall have contributed a substantial part of the
Consolidated Net Income for any of the three fiscal
years then most recently ended, and such order,
judgment or decree remains unstayed and in effect for
more than 60 days; or
(xiv) any judgment or order, or series of judgments
or orders, for the payment of money in an amount in
excess of $2,500,000 (exclusive of any amount covered
by insurance and not subject to any deductible
provision) is rendered against the Company or any
Guarantor and either (y) enforcement proceedings have
been commenced by any creditor upon such judgment or
order or (z) within 30 days after entry thereof, such
judgment is not discharged or execution thereof stayed
pending appeal, or within 30 days after the expiration
of any such stay, such judgment is not discharged;
then
(a) if such event is an Event of Default
specified in clause (viii), (ix), (x) or (xi) of this
7A, all of the Notes at the time outstanding shall
automatically become immediately due and payable at the
Optional Prepayment Price, together with accrued but
unpaid interest thereon, without presentment, demand,
protest or notice of any kind, all of which are hereby
waived by the Company, and
(b) if such event is an Event of Default
specified in clause (iii), (iv), (v), (vi), (vii),
(xii), (xiii) or (xiv) of this 7A, the holder or
holders of at least twenty- five percent (25%) of the
aggregate principal amount of the Notes then
outstanding, may at its or their option, by notice in
writing to the Company, declare all of the Notes to be,
and all of the Notes shall thereupon be and become,
immediately due and payable at the Optional Prepayment
Price, together with accrued but unpaid interest
thereon, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by
the Company, and
(c) if such event is an Event of Default
specified in clause (i) or (ii) of this 7A, any holder
of the Note may, at its or their option, by notice in
writing to the Company, declare all of the Notes to be,
and all of the Notes shall thereupon be and become,
immediately due and payable at the Optional Prepayment
Price, together with accrued but unpaid interest
thereon, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by
the Company.
B. Rescission of Acceleration. The provisions of 7A
are subject to the condition that if the principal of and
accrued interest on all or any outstanding Notes have been
declared immediately due and payable by reason of the
occurrence of any Event of Default described in paragraphs
(i) through (vii), inclusive, or (xii), (xiii) and (xiv) of
7A, the Required Holders may, by written instrument filed
with the Company, rescind and annul such declaration and the
consequences thereof, provided that at the time such
declaration is annulled and rescinded:
(a) no judgment or decree has been entered for
the payment of any monies due pursuant to the Notes or
this Agreement;
(b) all arrears of interest upon all the Notes
and all other sums payable under the Notes and under
this Agreement (except any principal, interest or
premium on the Notes which has become due and payable
solely by reason of such declaration under 7A) shall
have been duly paid; and
(c) each and every other Default and Event of
Default shall have been made good, cured or waived
pursuant to 11C;
and provided further, that no such rescission and annulment
shall extend to or affect any subsequent Default or Event of
Default or impair any right consequent thereto.
C. Other Remedies. If any Event of Default or
Default shall occur and be continuing the holder of any Note
may proceed to protect and enforce its rights under this
Agreement and such Note by exercising such remedies as are
available to such holder in respect thereof under applicable
law, either by suit in equity or by action at law, or both,
whether for specific performance of any covenant or other
agreement contained in this Agreement or in aid of the
exercise of any power granted in this Agreement. No remedy
conferred in this Agreement upon the holder of any Note is
intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or
hereafter existing at law or in equity or by statute or
otherwise.
.c.Section 8.Representations, Covenants and Warranties;.
Section 8. Representations, Covenants and Warranties. NPCI
and the Company severally represent, covenant and warrant:
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. Seattle Restaurant
Equipment Company, Inc. does not, as of the Date of
Closing, have material assets or operations.
(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 of, 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 creates or acquires any Subsidiary
after the Date of Closing, 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 of,
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 H 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.
C. Business and Property. You have heretofore been
furnished with a copy of the Memorandum which generally sets
forth the business conducted by NPCI and its Subsidiaries
and the principal properties of NPCI and its Subsidiaries.
Neither the Company nor any Guarantor has any current
intention of engaging in any business which would
significantly change the general nature of business engaged
in by the Company and the Guarantors on the Date of Closing.
D. Financial Statements. The Company has furnished
you with the following financial statements, identified by a
principal financial officer of the Company: consolidated
balance sheets of NPCI and its Subsidiaries for the fiscal
years ending on March 29, 1994, March 28, 1995 and March 26,
1996, and a consolidated statement of income and
consolidated statements of cash flows of NPCI and its
Subsidiaries for each such fiscal year all certified by
Ernst & Young. The Company has also furnished to you a
consolidated balance sheet, a consolidated statement of
income and a consolidated statement of cash flows in each
case of NPCI and its Subsidiaries for the fiscal quarter
ending December 24, 1996. Such financial statements
(including any related schedules and/or notes) are true and
correct in all material respects, have been prepared in
accordance with generally accepted accounting principles
consistently followed throughout the periods involved and
show all liabilities, direct and contingent, of NPCI and its
Subsidiaries required to be shown in accordance with such
principles. The consolidated balance sheets fairly present
the condition of NPCI and its Subsidiaries as at the dates
thereof, and the consolidated statements of income and
consolidated statements of cash flows fairly present the
results of the operations of NPCI and its Subsidiaries for
the periods indicated. There has been no material adverse
change in the business, condition or operations (financial
or otherwise) of NPCI and its Subsidiaries taken as a whole
since March 26, 1996.
E. Conflicting Agreements and Other Matters. Neither
the Company nor any Guarantor is a party to any contract or
agreement or subject to any charter or other corporate
restriction which materially and adversely affects its
business, property or assets, or financial condition.
Neither the execution nor delivery of this Agreement or the
Notes, nor the offering, issuance and sales of the Notes,
nor fulfillment of nor compliance with the terms and
provisions hereof and of the Notes will conflict with, or
result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any
of the properties or assets of the Company or any Guarantor
pursuant to, the charter, by-laws or other organizational
documents of the Company or any Guarantor, any award of any
arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which the Company or any
Guarantor is subject. Neither the Company nor any Guarantor
is a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the
Company or such Guarantor, any agreement relating thereto or
any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the Company of the
type to be evidenced by the Notes except as set forth in the
agreements listed in Exhibit D attached hereto.
F. Governmental Consent. Neither the nature of the
Company or of any Guarantor, nor any of their respective
business or properties, nor any relationship between the
Company or any Guarantor and any other Person, nor any
circumstance in connection with the offering, issuance, sale
or delivery of the Notes is such as to require any
authorization, consent, approval, exemption or other action
by or notice to or filing with any court or administrative
or governmental or regulatory body (other than routine
filings after the Date of Closing with the Securities and
Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this
Agreement, the offering, issuance, sale or delivery of the
Notes or fulfillment of or compliance with the terms and
provisions hereof or of the Notes.
G. Enforceability. This Agreement is, and the Notes
when delivered hereunder will be, legal, valid and binding
obligations of the Company enforceable against the Company
in accordance with their terms.
H. Actions Pending. There is no action, suit,
investigation or proceeding pending or, to the knowledge of
the Company, threatened against the Company or any
Guarantor, or any properties or rights of the Company or any
Guarantor, by or before any court, arbitrator or
administrative or governmental body which might result in
any material adverse change in the business, condition or
operations of the Company and the Guarantors taken as a
whole. There is no action, suit, investigation or
proceeding pending or threatened against the Company or any
Guarantor which purports to affect the validity or
enforceability of this Agreement or any Note.
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
Debt of the Company and the Guarantors, (including the
principal amount thereof) as of the Date of Closing. There
exists no default under the provisions of any instrument
evidencing such Debt or of any agreement relating thereto.
No Default or Event of Default has occurred and is
continuing.
J. Title to Properties. The Company has and each
Guarantor has good and marketable title to substantially all
of its respective real properties (other than properties
which it leases) and good title to substantially all of its
other respective properties and assets, including the
properties and assets reflected in the consolidated balance
sheet as at March 25, 1996 referred to in 8D (other than
properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens
permitted by 6C(1) and Liens as described in Exhibit G
hereto. The Company and each Guarantor enjoys peaceful and
undisturbed possession under all leases necessary in any
material respect for the operation of their respective
properties and assets, none of which contains any unusual or
burdensome provisions which might affect or impair the
operation of such properties and assets. All leases
necessary in any material respect for the conduct of the
respective businesses of the Company and the Guarantors are
valid and subsisting and are in full force and effect.
K. Taxes. The Company has and each Guarantor has
filed all Federal, State and other income tax returns and
franchise tax reports which, to the best knowledge of the
officers of the Company, are required to be filed, and each
has paid all taxes as shown on such returns and/or reports
and on all assessments received by it to the extent that
such taxes have become due, except such taxes as are being
contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with
generally accepted accounting principles. The Company does
not know of any proposed additional tax assessment against
it for which adequate provision has not been made on its
accounts, and no material controversy in respect of
additional Federal or state income taxes due since said date
is pending or to the knowledge of the Company threatened.
The provisions for taxes on the books of the Company and
each Guarantor are adequate in all material respects for all
open years, and for its current fiscal period.
L. Offering of Notes. Neither the Company nor any
agent acting on its behalf has, directly or indirectly,
offered the Notes or any similar security of the Company for
sale to, or solicited any offers to buy the Notes or any
similar security of the Company from, or otherwise
approached or negotiated with respect thereto with, any
Person other than the Purchasers and not more than twenty-
one (21) other institutional investors and neither the
Company nor any agent acting on its behalf has taken or will
take any action which would subject the issuance or sale of
the Notes to the provisions of 5 of the Securities Act or
to the provisions of any securities or Blue Sky law of any
applicable jurisdiction.
M. Regulation G, Etc. Neither the Company nor any
Guarantor owns or has any present intention of acquiring any
"margin stock" as defined in Regulation G (12 CFR Part 207)
of the Board of Governors of the Federal Reserve System
(herein called "margin stock"). The proceeds of sale of the
Notes will be used to acquire assets (other than stock) (or
to reduce indebtedness incurred to acquire such assets)
pursuant to the Asset Purchase Agreement by and between
Xxxxx X. Xxxxxxx, et al., and the Company, NPCI and NPC
Restaurants LP and for general corporate purposes. None of
such proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any margin stock or for the purpose
of maintaining, reducing or retiring any indebtedness which
was originally incurred to purchase or carry any stock that
is currently a margin stock or for any purpose which might
constitute this transaction a "purpose credit" within the
meaning of such Regulation G. Neither the Company nor any
agent acting on its behalf has taken or will take any action
which might cause this Agreement or the Notes to violate
Regulation G, Regulation T, Regulation X or any other
regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934, as
amended, in each case as in effect now or as the same may
hereafter be in effect.
N. Disclosure. Neither this Agreement nor any other
document, certificate or statement furnished to you by or on
behalf of the Company in connection herewith contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained herein and therein not misleading. There is no
fact peculiar to the Company or any Guarantor which
materially adversely affects or in the future may (so far as
the Company can now foresee) materially adversely affect the
business, property or assets, or financial condition of the
Company or any Guarantor and which has not been set forth in
this Agreement or in the other documents, certificates and
statements furnished to you by or on behalf of the Company
prior to the date hereof in connection with the transactions
contemplated hereby.
O. Investment Company Act. Neither the Company nor
any Guarantor is an "investment company" or a company
"controlled" by an "investment company," within the meaning
of the Investment Company Act of 1940, as amended.
P. Public Utility Holding Company Act. Neither the
Company nor any Guarantor is a "holding company" or a
"subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," or a "public utility"
within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
Q. Patents and Trademarks. The Company and each
Guarantor owns, possesses or is licensed to use all the
patents, trademarks, trade names, service marks, copyrights,
licenses and rights with respect to the foregoing necessary
for the present and planned future conduct of its business,
without any known conflict with the rights of others.
R. ERISA. The consummation of the transactions
provided for in the Agreements and compliance by the Company
and the Guarantor with the provisions thereof and the Notes
issued thereunder will not involve any prohibited
transaction within the meaning of ERISA or Section 4975 of
the Code. Neither the Company nor any ERISA Affiliate has
heretofore or is currently maintaining any Plan. Neither
the Company nor any ERISA Affiliate has any contingent
liability with respect to any post-retirement "welfare
benefit plan" (as such term is defined in ERISA) except as
has been disclosed to the Purchasers.
S. Compliance with Law. To NPCI's or the Company's
knowledge, neither the Company nor any Guarantor (a) is in
violation of any law, ordinance, franchise, governmental
rule or regulation to which it is subject; or (b) has failed
to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation
or failure to obtain would materially adversely affect the
business, prospects, profits, properties or condition
(financial or otherwise) of the Company and the Guarantors,
taken as a whole, or impair the ability of the Company to
perform its obligations contained in the Agreements or the
Notes. Neither the Company nor any Guarantor is in default
with respect to any order of any court or governmental
authority or arbitration board or tribunal.
T. Compliance with Environmental Laws. To NPCI's or
the Company's knowledge, neither the Company nor any
Guarantor is in violation of any applicable Federal, state,
or local laws, statutes, rules, regulations or ordinances
relating to public health, safety or the environment,
including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or
ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls
(PCB's), asbestos or urea formaldehyde, to the treatment,
storage, disposal or management of hazardous substances
(including, without limitation, petroleum, crude oil or any
fraction thereof, or other hydrocarbons), pollutants or
contaminants, to exposure to toxic, hazardous or other
controlled, prohibited or regulated substances which
violation could have a material adverse effect on the
business, prospects, profits, properties or condition
(financial or otherwise) of the Company and the Guarantors,
taken as a whole. The Company does not know of any
liability or class of liability of the Company or any
Guarantor under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.), or the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901
et seq.).
U. Franchise Agreements. All franchise agreements,
licenses, or other permits (as amended, modified, replaced
or superseded, collectively, "Franchise Agreements")
necessary to permit the Company and the Guarantors to
operate under the name "Pizza Hut" are in full force and
effect. No event exists which with the lapse of time or the
giving of notice, or either, would constitute a default
under any such Franchise Agreements. The Franchise
Agreements do not expire prior to February 28, 2010.
.c.Section 9.Representations of the Purchaser;.
Section 9. Representations of the Purchaser. You represent
and in making this sale to you it is specifically understood and
agreed that you are not acquiring the Notes to be purchased by
you hereunder with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act,
provided that the disposition of your property shall at all times
be and remain within your control.
You also represent that the source of funds to be used by
you to pay the purchase price of the Notes to be purchased by you
hereunder is your "insurance company general account" as defined
in Department of Labor Prohibited Transaction Exemption PTE 95-60
(60 FR 35925), July 12, 1995 (hereinafter "PTE 95-60"), and in
respect thereof you represent that there is no "employee benefit
plan" (as defined in section 3(3) of ERISA and section 4975(e)(1)
of the Code) established or maintained by the Company (and
affiliates thereof as defined in section V(a)(1) of the PTE 95-
60) with respect to which the amount of general account reserves
and liabilities of all contracts held by or on behalf of such
plan exceed ten percent (10%) of the total reserves and
liabilities of such general account (exclusive of separate
account liabilities) plus surplus, as set forth in the National
Association of Insurance Commissioners' Annual Statement filed
with your state of domicile.
.c.Section 10. Definitions and Accounting Terms;.
A. Certain Defined Terms. As used in this Agreement the
following terms shall have the meanings specified with respect
thereto below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined);
"Affiliate" shall mean any Person (i) which directly or
indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, NPCI or
the Company, (ii) which beneficially owns or holds 5% or
more of any class of the Voting Securities of NPCI or the
Company or (iii) 5% or more of the Voting Securities (or in
the case of a Person which is not a corporation, 5% or more
of the equity interest) of which is beneficially owned or
held by NPCI or the Company or a Subsidiary. The term
"control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of
Voting Securities by contract or otherwise.
"Bankruptcy Laws" shall have the meaning specified in
clause (ix) of 7A.
"Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which commercial banks in New
York City are required or authorized to be closed.
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to 4B
or has become or is declared to be immediately due and
payable pursuant to 7A, as the context requires.
"Capitalized Lease" shall mean any lease which is
required to be capitalized on the balance sheet of the
lessee pursuant to GAAP.
"Capitalized Lease Obligations" shall mean the amount
at which the aggregate rentals due and to become due under
all Capitalized Leases under which the Company or any
Guarantor, as a lessee, would be required to be reflected as
a liability on the consolidated balance sheet of NPCI in
accordance with GAAP.
"Closing" or "Date of Closing" shall have the meaning
specified in 2.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Consolidated Debt" shall mean all Debt of NPCI and its
Subsidiaries, determined on a consolidated basis eliminating
intercompany items.
"Consolidated Net Income" for any period shall mean the
net income and net losses of NPCI and its Subsidiaries on a
consolidated basis as defined according to GAAP after
excluding the sum of (i) any net loss or any net earnings of
any business entity (other than a Guarantor) in which NPCI
or any of its Subsidiaries has an ownership interest unless
such net earnings shall have actually been received by NPCI
or such Subsidiary in the form of cash distributions, (ii)
the net income or loss of any Subsidiary for any period
prior to the date it became a Subsidiary, (iii) the gain or
loss (net of any tax effect) resulting from the sale of any
capital assets other than in the ordinary course of
business, and (iv) extraordinary or nonrecurring gains or
losses.
"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 Priority Debt" shall mean, as of the date
of any determination thereof, Consolidated Debt excluding:
(i) unsecured Debt of the Company or NPCI;
(ii) Debt of the Company or NPCI secured by liens
described in 6C(1)(i) through (v) inclusive; and
(iii) Permitted Guaranty Debt.
"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 NPCI, 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.
"Debt" shall mean indebtedness for all borrowed money,
including the liability with respect to Capitalized Lease
Obligations, liabilities secured by a Lien on existing
property, and the aggregate amount of Guaranties and
together with the aggregate amount of all letters of credit
issued for the account of the Company or any Guarantor to
the extent such letters of credit have an aggregate face
amount in excess of $12,000,000 and (but without
duplication) all letters of credit issued for the account of
the Company or any Guarantor to the extent draws have been
made thereon. For purposes of this definition, "Debt" shall
not include trade accounts payable, accrued expenses or
income taxes payable.
"Discount Rate" shall mean, with respect to the Called
Principal of any Note, 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 "USD" of the Bloomberg Financial
Markets Services Screen (or such other display as may
replace page "USD" 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 duration
closest to and greater than the Remaining Average Life and
(2) the actively traded U.S. Treasury security with the
duration closest to and less than the Remaining Average
Life.
"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).
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute
of similar import, together with the regulations thereunder,
in each case as in effect from time to time. References to
sections of ERISA shall be construed to also refer to any
successor sections.
"ERISA Affiliate" shall mean any corporation, trade or
business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of
trades or businesses, as described in section 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
"Event of Default" shall mean any of the events
specified in 7A, provided that there has been satisfied any
requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any
further condition, event or act, and "Default" shall mean
any of such events, whether or not any such requirement has
been satisfied.
"Fixed Charges" shall mean the sum of interest expenses
and operating lease expenses as reflected in the GAAP
financial statements of NPCI and its Subsidiaries on a
consolidated basis.
"Franchise Agreements" shall have the meaning specified
in 8U.
"GAAP" shall mean those generally accepted accounting
principles as in effect at the Date of Closing.
"Guaranties" by any Person shall mean all obligations
(other than endorsements in the ordinary course of business
of negotiable instruments for deposit or collection) of such
Person guaranteeing, or in effect guaranteeing, any debt,
dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by
such Person: (i) to purchase such Debt or obligation or any
property or assets constituting security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of
such Debt or obligation, (y) to maintain working capital or
other balance sheet condition or otherwise to advance or
make available funds for the purchase or payment of such
Debt or obligation, (iii) to lease property or to purchase
Securities or other property or services primarily for the
purpose of assuring the owner of such Debt or obligation of
the ability of the primary obligor to make payment of the
Debt or obligation, or (iv) otherwise to assure the owner of
the Debt or obligation of the primary obligor against loss
in respect thereof. For the purposes of all computations
made under this Agreement, a Guaranty in respect of any Debt
for borrowed money shall be deemed to be Debt equal to the
principal amount of such Debt for borrowed money which has
been guaranteed, and a Guaranty in respect of any other
obligation or liability or any dividend shall be deemed to
be Debt equal to the maximum aggregate amount of such
obligation, liability or dividend.
"Guarantor" shall mean at any time NPCI and each other
Person which is a party to the Master Guaranty at such time.
"Interest Payment Date" shall mean each May 1 and
November 1 of each year during the term of the Notes.
"Investments" shall mean all investments, in cash or by
delivery of property made, directly or indirectly in any
Person, whether by acquisition of shares of capital stock,
Debt or other obligations or Securities or by loan, advance,
capital contribution or otherwise; provided, however, that
"Investments" shall not mean or include routine investments
in property to be used or consumed in the ordinary course of
business.
"Lien" shall mean any mortgage, pledge security
interest, encumbrance, lien or charge of any kind (including
any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any lease in the
nature thereof, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code of any
jurisdiction) or any other type of preferential arrangement
encumbering property.
"Master Guaranty" shall mean the guaranty agreement to
be dated on the Date of Closing, substantially in the form
of Exhibit H hereto, and whereby each Guarantor shall
unconditionally and jointly and severally guarantee in favor
of the Purchasers the due and punctual payment of all
principal of, premium, if any, and interest on the Notes.
"Material Operating Group" shall mean and include the
Pizza Hut restaurant group, the Xxxx Xxxx restaurant group
and all other operating restaurant groups.
"Memorandum" shall have the meaning specified in
6C(9).
"Notes" shall have the meaning specified in 1A.
"NPCI" means NPC International, Inc., a Kansas
corporation.
"Officers' Certificate" shall mean a certificate signed
in the name of NPCI by its President, one of its Vice
Presidents or its Treasurer and in the name of the Company
by its President, one of its Vice Presidents or its
Treasurer.
"Optional Prepayment Price" shall mean, with respect to
the principal amount of the Notes to be prepaid, an amount
obtained by discounting all scheduled payments of such
prepaid principal amount of the Notes and interest thereon
that would be due on or after the prepayment date to the
scheduled due date thereof at the Discount Rate. If the
Company and the holder of any Note shall prior to the
prepayment date designate in writing a different prepayment
price, that different prepayment price shall be payable on
the prepayment date and shall be the "Optional Prepayment
Price." In no event shall the Optional Prepayment Price be
less than the principal amount of the Notes to be prepaid.
"Person" shall mean an individual, corporation,
partnership, trust, joint venture, unincorporated
organization or a government agency or political subdivision
thereof.
"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 whereby such
Guarantor guarantees the payment of all principal, interest
and other amounts, if any, payable in respect of such Debt.
"Plan" shall mean a "pension plan," as such term is
defined in ERISA, established or maintained by the Company
or any ERISA Affiliate or as to which the Company or any
ERISA Affiliate contributed or is a member or otherwise may
have any liability.
"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 Note, 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 Notes, 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 4B or 7A.
"Required Holder(s)" shall mean the holder or holders
of at least seventy-five percent (75%) of the aggregate
principal amount of the Notes from time to time outstanding.
"Required Prepayment" shall have the meaning specified
in 4A.
"Restricted Investments" shall mean all Investments
made by the Company or any Guarantor in any Person or
property except:
(a) Investments by NPCI and its Subsidiaries in
and to NPCI and its Subsidiaries, including any
Investment in any Person which, after giving effect to
such Investment, will become a Subsidiary;
(b) Investments in commercial paper maturing in
270 days or less from the date of issuance which, at
the time of acquisition by the Company or any
Guarantor, is accorded the highest ratings by Standard
& Poor's Corporation, Xxxxx'x Investors Service, Inc.
or other nationally recognized credit rating agency of
similar standing;
(c) Investments in direct obligations of the
United States of America or any agency or
instrumentality of the United States of America, the
payment or guarantee of which constitutes a full faith
and credit obligation of the United States of America,
in either case, maturing in twelve months or less from
the date of acquisition thereof;
(d) Investments in certificates of deposit
maturing within one year from the date of issuance
thereof, issued by a bank or trust company organized
under the laws of the United States or any state
thereof, or the United States branch of any bank or
trust company organized under the laws of any country
of Western Europe or of Japan, having, in each case,
capital, surplus and undivided profits aggregating at
least $250,000,000;
(e) Investments in securities issued by state and
local governments (or subdivisions thereof) maturing in
twelve months or less from the date of acquisition by
the Company or a Guarantor which at the time of
acquisition thereof by the Company or a Guarantor are
rated AA or better by Standard & Poor's Corporation or
Aa or better by Xxxxx'x Investors Service, Inc.;
(f) loans or advances to officers, directors and
employees, such loans or advances not in the aggregate
to exceed, in any event, an amount equal to $1,500,000;
and
(g) promissory notes and other receivables
arising from the sale of goods and services or other
assets, not to exceed, in the aggregate, $7,500,000.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Settlement Date" means, with respect to the Called
Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to Section 8.2 or has
become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
"Sharing Agreement" shall mean the Sharing Agreement
dated as of May 8, 1997, as amended from time to time.
"Significant Holder" shall mean (i) you, so long as you
shall hold (or be committed under this Agreement to
purchase) any Note, or (ii) any other holder of at least 10%
of the aggregate principal amount of the Notes from time to
time outstanding.
"Subsidiary" shall mean any Person of which or in which
NPCI 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 unincorporated organization.
"Total Assets" shall mean, as of the date of any
determination thereof, all assets of the Company and the
Guarantors computed in accordance with GAAP consistently
applied.
"Transferee" shall mean any direct or indirect
transferee of all or any part of any Note purchased by you
under this Agreement.
"Voting Securities" shall mean Securities of any class
or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to elect a majority of
the corporate directors (or Persons performing similar
functions).
B. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred
to in 8D.
.c.Section 11. Miscellaneous;.
Section 11. Miscellaneous.
A. Note Payments. So long as you shall hold any
Note, the Company will make payments of principal thereof or
Optional Prepayment Price as applicable, and interest
thereon, not later than 12:00 noon, Houston time, on the day
when due by wire transfer of immediately available funds for
credit to your account or accounts as specified in Schedule
I attached hereto, or such other account or accounts in the
United States as you may designate in writing,
notwithstanding any contrary provision herein or in any Note
with respect to the place of payment. You agree that,
before disposing of any Note, you will make a notation
thereon (or on a schedule attached thereto) of all principal
payments previously made thereon and of the date to which
interest thereon has been paid. The Company agrees to
afford the benefits of this 11A to any Transferee which
shall have made the same agreement as you have made in this
11A. If any payment due on any Note is payable on a
Saturday, Sunday or day on which banks in the State of Texas
or the State of New York are authorized to be closed, such
payment shall be payable on the next succeeding day which is
not a Saturday, Sunday or day on which banks in Texas and
New York are authorized to be closed, without accruing
additional interest.
B. Expenses. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to
pay, and save you and any Transferee harmless against
liability for the payment of, all reasonable out-of-pocket
expenses arising in connection with such transactions (other
than such costs and expenses associated with or resulting
from your resale of the Notes), including (i) all document
production and duplication charges and the reasonable fees
and expenses of any special counsel engaged by you in
connection with this Agreement and the transactions
contemplated hereby, and all document production and
duplication charges and the reasonable fees and expenses of
any special counsel engaged by you or any Transferee in
connection with any subsequent proposed modification of, or
proposed consent under, this Agreement, whether or not such
proposed modification shall be effected or proposed consent
granted, (ii) expenses incurred in obtaining a Private
Placement Number from Standard & Poor's CUSIP Service Bureau
with respect to the Notes being purchased by you; and (iii)
to the extent permitted by applicable law, the reasonable
costs and expenses, including reasonable attorneys' fees,
incurred by you or any Transferee in enforcing any rights
against the Company under this Agreement or the Notes
(whether in the contest of civil action, adversary
proceeding, workout or otherwise) or in responding to any
subpoena or other legal process issued in connection with
this Agreement or the transactions contemplated hereby or by
reason of your or any Transferee's having acquired any Note,
including without limitation reasonable costs and expenses
incurred in any bankruptcy case. The obligations of the
Company under this 11B shall survive the transfer of any
Note or portion thereof or interest therein by you or any
Transferee and the payment of any Note.
C. Consent to Amendments. This Agreement may be
amended, and the Company may take any action herein
prohibited, or omit to perform any act herein required to be
performed by it, if the Company shall obtain the written
consent to such amendment, action or omission to act, of the
Required Holder(s) except that, without the written consent
of the holder or holders of all Notes at the time
outstanding and the Company no amendment to this Agreement
shall change the maturity of any Note, or change the
principal of, or the rate or time of payment of interest or
any premium payable with respect to any Note, or affect the
time, amount or allocation of any required prepayments, or
change the proportion of the principal amount of the Notes
required with respect to any consent. Each holder of any
Note at the time or thereafter outstanding shall be bound by
any consent authorized by this 11C, whether or not such
Note shall have been marked to indicate such consent, but
any Notes issued thereafter may bear a notation referring to
any such consent. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note shall operate as a waiver
of any rights of any holder of such Note. As used herein and
in the Notes, the terms "this Agreement" and "the Note
Agreements" and references thereto shall mean this Agreement
as it may from time to time be amended or supplemented.
D. Form, Registration, Transfer and Exchange of
Notes; Lost Notes. The Notes are issuable as registered
notes without coupons in denominations of not less than
$1,000,000, except as may be necessary to effect the
registration or transfer of a Note which is outstanding in a
principal amount of less than $1,000,000. The Company shall
keep at its principal office a register in which the Company
shall provide for the registration of Notes and of transfers
of Notes. Upon surrender for registration of transfer of any
Note at the principal office of the Company, the Company
shall, at its expense, execute and deliver one or more new
Notes of like tenor and of a like aggregate principal
amount, registered in the name of such transferee or
transferees. At the option of the holder of any Note, such
Note may be exchanged for other Notes of like tenor and of
any authorized denominations, of a like aggregate principal
amount, upon surrender of the Note to be exchanged at the
principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the holder making the
exchange is entitled to receive. Every Note surrendered for
registration of transfer or exchange shall be duly endorsed,
or be accompanied by a written instrument of transfer duly
executed, by the holder of such Note or such holder's
attorney duly authorized in writing. Any Note or Notes
issued in exchange for any Note or upon transfer thereof
shall carry the rights to unpaid interest and interest to
accrue which were carried by the Note so exchanged or
transferred, so that neither gain nor loss of interest shall
result from any such transfer or exchange. Upon receipt of
written notice from the holder of any Note of the loss,
theft, destruction or mutilation of such Note and, in the
case of any such loss, theft or destruction, upon receipt of
such holder's unsecured indemnity agreement, or in the case
of any such mutilation upon surrender and cancellation of
such Note, the Company will make and deliver a new Note, of
like tenor, in lieu of the lost, stolen, destroyed or
mutilated Note.
E. Persons Deemed Owners; Participations. Prior to
due presentment for registration of transfer, the Company
may treat the Person in whose name any Note is registered as
the owner and holder of such Note for the purpose of
receiving payment of principal of and premium, if any, and
interest on such Note and for all other purposes whatsoever,
whether or not such Note shall be overdue, and the Company
shall not be affected by notice to the contrary. Subject to
the preceding sentence, the holder of any Note may from time
to time grant participations in all or any part of such Note
to any Person on such terms and conditions as may be
determined by such holder in its sole and absolute
discretion.
F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained
herein or made in writing by or on behalf of the Company in
connection herewith shall survive the execution and delivery
of this Agreement and the Notes, the transfer by you of any
Note or portion thereof or interest therein and the payment
of any Note, and may be relied upon by any Transferee,
regardless of any investigation made at any time by or on
behalf of you or any Transferee until such time as all
principal of, Optional Prepayment Price, if applicable, and
interest on, the Notes have been paid in full. Subject to
the preceding sentence, this Agreement and the Notes embody
the entire agreement and understanding between you and the
Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
G. Successors and Assigns. All covenants and other
agreements in this Agreement contained by or on behalf of
either of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the
parties hereto (including, without limitation, any
Transferee) whether so expressed or not.
H. Disclosure to Other Persons. The Company
acknowledges that the holder of any Note may deliver copies
of any financial statements and other documents delivered to
such holder, and disclose any other information disclosed to
such holder, by or on behalf of the Company or any Guarantor
in connection with or pursuant to this Agreement to (i) such
holder's directors, trustees, officers, employees, agents
and professional consultants, (ii) any other holder of any
Note, (iii) any Person to which such holder offers to sell
such Note or any part thereof, (iv) any Person to which such
holder sells or offers to sell a participation in all or any
part of such Note, (v) any federal or state regulatory
authority having jurisdiction over such holder, (vi) the
National Association of Insurance Commissioners or any
similar organization or (vii) any other Person to which such
delivery or disclosure may be necessary or appropriate (a)
in compliance with any law, rule, regulation or order
applicable to such holder, (b) in response to any subpoena
or other legal process, (c) in connection with any
litigation to which such holder is a party, (d) in order to
protect such holder's investment in such Note or (e) to
correct any false or misleading information which may become
public concerning the relationship with such holder to the
Company or the Guarantors. Except as provided in the
previous sentence, each holder agrees that it will use its
best efforts to hold in confidence and not to disclose the
Confidential Information. As used herein "Confidential
Information" means copies of any financial statements and
other documents delivered to such holder, and any other
information disclosed to such holder, by or on behalf of the
Company or any Guarantor of the Company in connection with
or pursuant to this Agreement, but does not include
information (i) which was publicly known or otherwise known
to such holder, at the time of disclosure, (ii) which
subsequently becomes publicly known through no act or
omission of such holder, or (iii) which otherwise becomes
known to such holder, other than through disclosure by the
Company or any Guarantor of the Company.
I. Notices. All notices or other communications
provided for hereunder (except for the telephonic notices
required by 4C) shall be in writing and sent by nationwide
overnight delivery service (with charges prepaid) or
telecopy (with receipt confirmed by the recipient) and, (i)
if to you, addressed to you at the address specified for
such communications in Schedule 1 attached hereto, or at
such other address as you shall have specified to the
Company in writing, (ii) if to any other holder of any Note,
addressed to such other holder at such address as such other
holder shall have specified to the Company in writing or, if
any such other holder shall not have so specified an address
to the Company, then addressed to such other holder in care
of the last holder of such Note which shall have so
specified an address to the Company, and (iii) if to the
Company or any Guarantor, addressed to it at 000 X. 00xx
Xxxxxx, Xxxxxxxxx, Xxxxxx 00000, Attention: Xxxx X. Xxxx,
Vice President Finance (telecopy number (000) 000-0000), or
at such other address as the Company shall have specified to
the holder of each Note in writing; provided, however, that
any such communication to the Company may also, at the
option of the holder of any Note, be delivered by any other
reasonable means either to the Company at its address
specified above or to any officer of the Company.
J. Descriptive Headings. The descriptive headings of
the several Sections of this Agreement are inserted for
convenience only and do not constitute a part of this
Agreement.
K. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be
taken, is by the terms of this Agreement required to be
satisfactory to you or to the Required Holders, the
determination of such satisfaction shall be made by you or
the Required Holders, as the case may be, in the sole and
exclusive judgment (exercised in good faith) of you or the
Required Holders, as the case may be, making such
determination.
L. Governing Law. This Agreement shall be construed
and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of
Kansas.
M. Integration. This Agreement may not be changed
orally, but (subject to the provisions of 11C) only by an
agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge
is sought. This Written Note Agreement represents the final
agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral
agreements between the parties. This Agreement, together
with all other written agreements between you and the
Company, is the final expression of the Note Agreement
between you and the Company, and such Written Note Agreement
may not be contradicted by evidence of any prior oral
agreement or of A contemporaneous oral agreement between you
and the Company. Any additional non-standard terms of this
Agreement between you and the Company including the
reduction to writing of A previous oral agreement between
you and the Company are set forth in the space below:
None
No Unwritten Oral Agreement Between You and the Company
Exists.
N. Maximum Interest Payable. The Company, you and any
other holders of the Notes specifically intend and agree to
limit contractually the amount of interest payable under
this Agreement, the Notes and all other instruments and
agreements related hereto and thereto to the maximum amount
of interest lawfully permitted to be charged under
applicable law. Therefore, none of the terms of this
Agreement, the Notes or any instrument pertaining to or
relating to this Agreement or the Notes shall ever be
construed to create a contract to pay interest at a rate in
excess of the maximum rate permitted to be charged under
applicable law, and neither the Company, any guarantor nor
any other party liable or to become liable hereunder, under
the Notes, any guaranties or under any other instruments and
agreements related hereto and thereto shall ever be liable
for interest in excess of the amount determined at such
maximum rate, and the provisions of this Section shall
control over all other provisions of this Agreement, the
Notes, any guaranties or any other instrument pertaining to
or relating to the transactions herein contemplated. If any
amount of interest taken or received by you or any holder of
a Note shall be in excess of said maximum amount of interest
which, under applicable law, could lawfully have been
collected by you or such holder incident to such
transactions, then such excess shall be deemed to have been
the result of a mathematical error by all parties hereto and
shall be refunded promptly by the Person receiving such
amount to the party paying such amount, or, at the option of
the recipient, credited ratably against the unpaid principal
amount of the Note or Notes held by you or such holder,
respectively. All amounts paid or agreed to be paid in
connection with such transactions which would under
applicable law be deemed "interest" shall, to the extent
permitted by such applicable law, be amortized, prorated,
allocated and spread throughout the stated term of this
Agreement. "Applicable law" as used in this Section means
that law governing this Agreement in effect from time to
time which permits the charging and collection of the
highest permissible lawful, nonusurious rate of interest on
the transactions herein contemplated and "maximum rate" as
used in this Section means, with respect to each of the
Notes, the maximum lawful, nonusurious rates of interest (if
any) which under applicable law may be charged to the
Company from time to time with respect to such Notes.
O. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which
shall be deemed an original, and it shall not be necessary
in making proof of this Agreement to produce or account for
more than one such counterpart.
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement among you, NPCI and the Company.
Very truly yours,
NPC Management, Inc.
By
Name:
Title:
NPC International, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above
written.
[Name of Note Purchaser]
By__________________________________
Name:
Title:
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement among you, NPCI and the Company.
Very truly yours,
NPC Management, Inc.
By
Name:
Title:
NPC International, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above
written.
The Northwestern Mutual Life
Insurance Company
By__________________________________
Name:
Title:
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement among you, NPCI and the Company.
Very truly yours,
NPC Management, Inc.
By
Name:
Title:
NPC International, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above
written.
The Variable Annuity Life
Insurance Company
By__________________________________
Name:
Title:
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement among you, NPCI and the Company.
Very truly yours,
NPC Management, Inc.
By
Name:
Title:
NPC International, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above
written.
American General Life
Insurance Company
By__________________________________
Name:
Title:
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement among you, NPCI and the Company.
Very truly yours,
NPC Management, Inc.
By
Name:
Title:
NPC International, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above
written.
The Franklin Life Insurance Company
By__________________________________
Name:
Title:
Name and Address Principal Amount
of Purchaser of Notes to Be Purchased
The Northwestern Mutual Life
Insurance Company $15,000,000
000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Securities Department
Telecopier number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank
wire transfer of Federal or other immediately available funds
(identifying each payment as "NPC Management, Inc., 7.94% Senior
Notes due May 1, 2006, [principal, premium or interest]") to:
Bankers Trust Company
ABA # 0210-01033
00 Xxxx Xxxxxx
Insurance Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: The Northwestern Mutual Life Insurance
Company
Account Number: 00-000-000
Notices
All notices and communications to be addressed as first
provided above, except notices with respect to payments and
written confirmation of each such payment, to be addressed
Attention: Investment Operations
Telephonic Notice, if any, under 4C, to be made to Xxxx
Xxxxxxx, at (000) 000-0000 (or to such other person at such other
telephone number designated in writing by the holder to the
Company) in person and not by voice mail.
Name of Nominee in which Notes are to be issued: None
Tax I.D. Number: 00-0000000
Name and Address Principal Amount
of Purchaser of Notes to Be Purchased
The Variable Annuity Life Insurance Company $20,000,000
c/o American General Corporation
*[P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000]
Attention: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
Xxxxxxxxx Number: (000) 000-0000
*Overnight Mailing Address:
[2929 Xxxxx Parkway
Houston, Texas 77019-2155]
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "NPC Management, Inc., 7.94% Senior
Guaranteed Notes due May 1, 2006, [principal, premium or
interest]") to:
ABA #000000000
State Street Bank and Trust Company
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: The Variable Annuity Life Insurance Company
AC-0125-821-9
OBI=PPN Number and description of payment
Fund Number PA 54
Notices
All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
The Variable Annuity Life Insurance Company and PA 54
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
Duplicate payment notices and all other correspondences to be
addressed as first provided above.
Telephonic Notice, if any, under 4C, to be made to Xxxxx Xxxxxx,
at (000) 000-0000 (or to such other person at such other
telephone number designated in writing by the holder to the
Company) in person and not by voice mail.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Deliver securities by overnight courier to:
State Street Bank and Trust Company
Securities Services
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Kay_Receive and Deliver
with a transmittal letter requesting that State Street confirm
receipt of the securities to Xxxxxxx Xxx at American General and
that they transmit by regular mail a photocopy of such securities
to her attention at the above address for American General.
Copies of transmittal letter, together with copies of original
securities, should be sent to Xxxxx X. Xxxxxxx at American
General Corporation, Suite A-36-01, 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000.
Name and Address Principal Amount
of Purchaser of Notes to Be Purchased
American General Life Insurance Company $10,000,000
c/o American General Corporation
*[P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000]
Attention: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
Xxxxxxxxx Number: (000) 000-0000
*Overnight Mailing Address:
[2929 Xxxxx Parkway
Houston, Texas 77019-2155]
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "NPC Management, Inc., 7.94% Senior
Guaranteed Notes due May 1, 2006, [principal, premium or
interest]") to:
ABA #000000000
State Street Bank and Trust Company
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: American General Life Insurance Company
AC-0125-880-5
OBI=PPN # and description of payment
Fund Number PA 40
Notices
All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
American General Life Insurance Company and PA 40
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
Duplicate payment notices and all other correspondences to be
addressed as first provided above.
Telephonic Notice, if any, under 4C, to be made to Xxxxx Xxxxxx,
at (000) 000-0000 (or to such other person at such other
telephone number designated in writing by the holder to the
Company) in person and not by voice mail.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Securities should be forwarded to:
State Street Bank and Trust Company
Securities Services
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxx - Receive and Deliver
with a transmittal letter requesting that State Street confirm
receipt of the securities to Xxxxxxx Xxx at American General and
that they transmit by regular mail a photocopy of such securities
to her attention at the above address for American General.
Copies of transmittal letter, together with copies of original
securities, should be sent to Xxxxx X. Xxxxxxx at American
General Corporation, Suite A-36-01, 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000.
Name and Address Principal Amount
of Purchaser of Notes to Be Purchased
The Franklin Life Insurance Company $5,000,000
c/o American General Corporation
*[P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000]
Attention: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
Xxxxxxxxx Number: (000) 000-0000
*Overnight Mailing Address:
[2929 Xxxxx Parkway
Houston, Texas 77019-2155]
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "NPC Management, Inc., 7.94% Senior
Guaranteed Notes due May 1, 2006, [principal, premium or
interest]") to:
ABA #000000000
State Street Bank and Trust Company
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: The Franklin Life Insurance Company
AC-2492-440-9
OBI=PPN Number and description of payment
Fund Number PA 37
Notices
All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
The Franklin Life Insurance Company and PA 37
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
Duplicate payment notices and all other correspondences to be
addressed as first provided above.
Telephonic Notice, if any, under 4C, to be made to Xxxxx Xxxxxx,
at (000) 000-0000 (or to such other person at such other
telephone number designated in writing by the holder to the
Company) in person and not by voice mail.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Deliver securities by overnight courier to:
State Street Bank and Trust Company
Securities Services
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Kay_Receive and Deliver
with a transmittal letter requesting that State Street confirm
receipt of the securities to Xxxxxxx Xxx and transmit by regular
mail a photocopy of such securities to her attention at American
General Corporation, Suite A37-01, 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000.
Copies of transmittal letter, together with copies of original
securities, should be sent to Xxxxx X. Xxxxxxx at American
General Corporation, Suite A-36-01, 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000.
(Form of Note)
This Note has not been registered under the Securities Act of
1933, as amended (the "Securities Act"). Any sale, transfer or
other disposition of this Note (other than to the Issuer hereof)
may be made only if made (A) pursuant to an effective
registration statement under the Securities Act or (B) pursuant
to an exemption from the registration requirements of the
Securities Act.
NPC Management, Inc.
7.94% Senior Guaranteed Note
Due May 1, 2006
No. _____________, 19____
$
NPC Management, Inc., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
_________________________________
or registered assigns
on the first day of May, 2006
the principal amount of
_______________________________________ Dollars ($_____________)
and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) on the principal amount from time to time
remaining unpaid hereon at the rate of 7.94% per annum from the
date hereof until maturity, payable semiannually on the first day
of each May and November in each year (commencing November 1,
1997) and at maturity. The Company agrees to pay interest on
overdue principal (including any overdue required or optional
prepayment of principal) and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest, at
the rate of (i) 9.94% per annum or (ii) the rate announced by
Texas Commerce Bank National Association as its "prime rate",
whichever is greater, after the due date, whether by acceleration
or otherwise, until paid. Both the principal hereof and interest
hereon are payable at the principal office of the Company in
Pittsburg, Kansas in coin or currency of the United States of
America which at the time of payment shall be legal tender for
the payment of public and private debts.
This Note is one of the 7.94% Senior Guaranteed Notes due
May 1, 2006 (the "Notes") of the Company in the aggregate
principal amount of $50,000,000 issued or to be issued under and
pursuant to the terms and provisions of the separate Note
Agreements, each dated as of May 1, 1997 (the "Note Agreements"),
entered into by the Company with the original Purchasers therein
referred to. This Note and the payment and performance hereof
are unconditionally guaranteed pursuant to the Master Guaranty
dated May 1, 1997 (the "Master Guaranty") of the Guarantors named
therein. This Note and the holder hereof are entitled equally
and ratably with the holders of all other Notes outstanding under
the Note Agreements to all the benefits provided for thereby or
referred to therein and provided for by the Master Guaranty.
Reference is hereby made to the Note Agreements and the Master
Guaranty for a statement of such rights and benefits
This Note and the other Notes outstanding under the Note
Agreements may be declared due prior to their expressed maturity
dates and certain prepayments are required to be made thereon,
all in the events, on the terms and in the manner and amounts as
provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the
option of the Company prior to their expressed maturity dates
except on the terms and conditions and in the amounts and with
the premium, if any, set forth in the Note Agreements.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of
the Company duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of this Note
or its attorney duly authorized in writing. Payment of or on
account of principal, premium, if any, and interest on this Note
shall be made only to or upon the order in writing of the
registered holder.
NPC Management, Inc.
By
Name:
Title:
(Form of Opinion of Counsel to the Company)
The closing opinion of Shook, Hardy & Bacon L.L.P., special
counsel for the Company and the Guarantors, which is called for
by 3A(x) of the Agreements, shall be dated the Date of Closing
and addressed to the Purchasers, shall be satisfactory in scope
and form to the Purchasers, and shall be to the effect that:
1. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of Delaware,
has the corporate power and the corporate authority to execute
and perform the Note Agreements and to issue the Notes and has
the full corporate power and the corporate authority to conduct
the activities in which it is now engaged and is duly licensed or
qualified and is in good standing as a foreign corporation in
each jurisdiction wherein the failure to be so licensed or
qualified would have a material adverse effect on the conditions
or operations of the Company and Guarantors on a consolidated
basis.
2. Each Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation and is duly licensed or qualified and is in good
standing in each jurisdiction wherein the failure to be so
licensed or qualified would materially adversely affect the
condition or operations of such Guarantor and all of the issued
and outstanding shares of capital stock of each such Guarantor
have been duly issued, are fully paid and non-assessable and are
owned by the Company, by one or more Guarantors, or by the
Company and one or more Guarantors. NPCI owns 100% of the
outstanding shares of capital stock of the Company and the
Company and/or NPCI own the percentage of shares of capital stock
of each other Guarantor indicated on Exhibit E hereto.
3. The Note Agreements and the Notes have been duly
authorized by all necessary corporate action on the part of the
Company, has been duly executed and delivered by the Company and
constitute the legal, valid and binding contract of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
4. The Master Guaranty has been duly authorized by all
necessary corporate action on the part of each of the Guarantors,
has been duly executed and delivered by the Guarantors and
constitutes the legal, valid and binding contract of the
Guarantors enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body, Federal or state, is necessary in connection
with the execution and delivery of the Note Agreements, Notes,
and the Master Guaranty (collectively the "Operative Documents").
6. The issuance and sale of the Notes and the execution,
delivery and performance by the Company and the Guarantors of the
Operative Documents do not conflict with or result in any breach
of any of the provisions of or constitute a default under or
result in the creation or imposition of any Lien upon any of the
property of the Company or any Guarantor pursuant to the
provisions of the Charter or By-laws of the Company or any
Guarantor or any agreement or other instrument known to such
counsel to which the Company or any Guarantor is a party or by
which the Company or any Guarantor may be bound.
7. The issuance, sale and delivery of the Notes and the
Master Guaranty under the circumstances contemplated by the Note
Agreement do not, under existing law, require the registration of
the Notes or the Master Guaranty under the Securities Act of
1933, as amended, or the qualification of an indenture under the
Trust Indenture Act of 1939, as amended.
8. Assuming the Purchasers have delivered the written
notice attached hereto as Exhibit B-2 to the addressees also set
forth on Exhibit B-2, the Purchasers are parties to the Sharing
Agreement as if they were original parties thereto.
The opinion of Shook, Hardy & Bacon L.L.P. shall cover such
other matters relating to the sale of the Notes as the Purchasers
may reasonably request. With respect to matters of fact on which
such opinion is based, such counsel shall be entitled to rely on
appropriate certificates of public officials and officers of the
Company and the Guarantors.
Notice Regarding Election
to
Join Sharing Agreement
May ____, 1997
Notice is hereby given to each of the parties listed on
Schedule A hereto as follows:
Whereas, pursuant to that certain Note Agreement dated as of
May 1, 1997, between NPC Management, Inc. (the "Company"), NPC
International, Inc. and the institutional investors which are
signatories hereto (the "Noteholders"), the Company has issued
and sold to such Noteholders $50,000,000 of its 7.94% Senior
Guaranteed Notes (the "Notes") due May 1, 2006. The Notes are
unconditionally guaranteed pursuant to the Master Guaranty dated
May 1, 1997 (the "Guaranty");
Whereas, pursuant to that certain Sharing Agreement dated as
of May 8, 1997 (the "Sharing Agreement"), entered into by and
among Texas Commerce Bank National Association, individually and
as agent, Pacific Mutual Life Insurance Company, Pacific
Corinthian Life Insurance Company, Lutheran Brotherhood and the
Prudential Insurance Company of America (collectively, the
"Current Lenders"), the Current Lenders have agreed to certain
sharing arrangements as more fully set forth therein and,
pursuant to Section 17 thereof, have agreed to permit any
institutional investor which loans money to, or purchases notes
from, the Company (collectively, "New Borrowings"), which New
Borrowings are pari passu with the indebtedness of the Company to
the Current Lenders, and which indebtedness is guaranteed by the
Guarantors (as defined in the Sharing Agreement), to become a
party to the Sharing Agreement;
Whereas, the Notes will be pari passu with the indebtedness
of the Company to the Current Lenders and the Notes will be
guaranteed by the Guarantors;
Therefore, pursuant to Section 17 of the Sharing Agreement,
the Noteholders elect to become a party to the Sharing Agreement
and, thereupon, have all the rights and obligations of a "Lender"
thereunder. As a result of such election, (a) the Notes shall be
considered "Company Loan Documents" for all purposes of the
Sharing Agreement, and (b) the Guaranty Agreement shall be
considered a "Subject Guaranty" and one of the "Subject
Guaranties" for all purposes of the Sharing Agreement and the
Noteholders shall have the same rights and obligations under the
Sharing Agreement as do existing Lenders thereunder.
American General Life
Insurance
Company
The Variable Annuity Life
Insurance
Company
The Franklin Life Insurance
Company
By:
Its
The Northwestern Mutual Life
Insurance Company
By:
Its
Schedule A
to
Notice
Pacific Mutual Life Insurance Company
Pacific Corinthian Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Lutheran Brotherhood
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
Texas Commerce Bank National Association
000 Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
The Prudential Insurance Company of America
c/o Prudential Capital Group
Texas Commerce Tower
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Managing Director
Fax: (000) 000-0000
(Form of Opinion of Counsel to the Purchasers)
The closing opinion of Xxxxxxx and Xxxxxx, special counsel
for the Purchasers, which is called for by 3A(xi) of the
Agreements, shall be dated the Date of Closing and addressed to
the Purchasers, shall be satisfactory in scope and form to the
Purchasers, and shall be to the effect that:
1. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of Delaware,
has the corporate power and the corporate authority to execute
and deliver the Note Agreements and to issue the Notes.
2. The Note Agreements have been duly authorized by all
necessary corporate action on the part of the Company, have been
duly executed and delivered by the Company and constitutes the
legal, valid and binding contracts of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, and the Notes being
delivered on the date hereof have been duly executed and
delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes and the
Master Guaranty contemplated by the Note Agreements under the
circumstances contemplated by the Note Agreements do not, under
existing law, require the registration of the Notes or the Master
Guaranty under the Securities Act of 1933, as amended, or the
qualification of an indenture under the Trust Indenture Act of
1939, as amended.
The opinion of Xxxxxxx and Xxxxxx shall also state that the
opinion of Shook, Hardy & Bacon is satisfactory in scope and form
to Xxxxxxx and Xxxxxx and that, in their opinion, the Purchaser
is justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above,
Xxxxxxx and Xxxxxx may rely, as to matters referred to in
paragraph 1, solely upon an examination of the Certificate of
Incorporation certified by, and a certificate of good standing of
the Company from, the Secretary of State of the State of
Delaware, the By-laws of the Company and the general business
corporation law of the State of Delaware. The opinion of Xxxxxxx
and Xxxxxx is limited to the laws of the State of Illinois, the
general business corporation law of the States of Delaware and
Kansas and the Federal laws of the United States.
The opinion of Xxxxxxx and Xxxxxx shall cover such other
matters relating to the sale of the Notes as the Purchasers may
reasonably request. With respect to matters of fact on which such
opinion is based, such counsel shall be entitled to rely on
appropriate certificates of public officials and officers of the
Company and the Guarantors.
(List of Agreements Restricting Debt)
1. Note Agreement dated as of March 30, 1993, among National
Pizza Company and Pacific Mutual Life Insurance Company,
Pacific Corinthian Life Insurance Company and Lutheran
Brotherhood relating to 6.35% promissory notes in the
original aggregate principal amount of $20,000,000 due
April 1, 2000, as amended by agreements dated March 28,
1995, May 24, 1995, May 29, 1996, March 3, 1997 and May 8,
1997.
2. Amended and Restated Master Shelf and Assumption Agreement
dated as of May 8, 1997, between the Company and The
Prudential Insurance Company of America, relating to
promissory notes in the aggregate principal amount of
$60,000,000 issuable in accordance with the terms thereof.
3. $15,000,000 Amended and Restated Revolving Credit Agreement
dated as of May 8, 1997, among the Company, various banks
and Texas Commerce Bank National Association, as agent for
such banks.
4. $185,000,000 Amended and Restated Revolving Credit Agreement
dated as of May 8, 1997, among the Company, various banks
and Texas Commerce Bank National Association, as agent for
such banks.
(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, Inc., 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 Huntington Beach, Inc., a
Delaware corporation, 100% of the Voting Securities of which
are owned by Romacorp.
(Description of Debt)*
Note Agreement dated as of March 30, 1993,
among National Pizza Company and Pacific
Mutual Life Insurance Company, Pacific
Corinthian Life Insurance Company and
Luther Brotherhood relating to 6.35%
promissory notes in the original aggregate
principal amount of $20,000,000 due
April 1, 2000, as amended by Letter Agreements
dated March 28, 1995, May 24, 1995, May 29, 1996,
March 3, 1997 and May 8, 1997. $12,000,000
Amended and Restated Master Shelf and Assumption
Agreement dated as of May 8, 1997,
between the Company and The Prudential
Insurance Company of America relating to
promissory notes in the 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 as of March 5, 1997, among the Company,
various banks and Texas Commerce Bank National
Association, as agent for such banks. $4,000,000
$185,000,000 Amended and Restated Revolving Credit
Agreement dated as of March 5, 1997, among the Company,
various banks and Texas Commerce Bank National
Association, as agent for such banks. $89,000,000
Debt due T. R. Restaurants, Inc., pursuant to a
promissory note dated July 20, 1992, from
Romacorp, Inc.'s predecessor to T. R. Restaurants, Inc.
(assigned by T. R. Restaurants, Inc., to Xxxx Xxxxxx)
in the original principal amount of $4,000,000. $1,764,459
Total $136,764,4
59
*Balances as of May 13, 1997
(Liens Existing as of the Date of Closing)
1. Liens on certain restaurant equipment of Romacorp, Inc.
located at approximately eight Xxxx Xxxx'x restaurants, securing
Debt permitted under 6C(2).
(Form of Master Guaranty)
Master Guaranty
This Master Guaranty (the "Guaranty"), dated as of May 1,
1997, is executed and delivered by NPC International, Inc., a
Kansas corporation ("NPCI"), 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, and Roma Systems, Inc., a Delaware
corporation, Seattle Restaurant Equipment Company, Inc., a
Washington corporation, Roma Ft. Worth, Inc., a Texas
corporation, Roma Bar Management Corporation, a Texas
corporation, Roma Huntington Beach, Inc., a Delaware corporation
and Each of the Persons which may become a party hereto
(individually, a "Guarantor" and, collectively, the
"Guarantors"), to The Northwestern Mutual Life Insurance Company
and The Variable Annuity Life Insurance Company, American General
Life Insurance Company and The Franklin Life Insurance Company
(individually, a "Purchaser" and, collectively, the
"Purchasers").
Article I
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.
"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. The Debt also includes all reasonable
attorneys' fees and any other expenses incurred by a
Purchaser in negotiation, monitoring or enforcing the Note
Agreements, the Notes or this Master Guaranty or defending
against any claims made by Persons other than the
Purchasers, arising directly or indirectly in respect of or
on account of any of the Debt.
"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 in the 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.
"Note Agreements" means, collectively, each Note
Agreement dated as of May 1, 1997, among the Company, NPCI
and each Purchaser whereby the Company has agreed to issue
to the Purchasers its 7.94% Senior Guaranteed Notes Due May
1, 2006 in the aggregate stated principal amount of
$50,000,000, as the same may be amended, restated,
consolidated or otherwise modified from time to time.
"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 (which in the case of NPCI, shall
mean 100% of the Debt); (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, as amended.
"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 II
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 contemplated to be 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 III
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):
Section 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;
Section 3.3.2. extension of the 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;
Section 3.3.3. settlement or compromise of any or all of
the Debt;
Section 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);
Section 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;
Section 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;
Section 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;
Section 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;
Section 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;
Section 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;
Section 3.3.11. voluntary or involuntary liquidation,
dissolution, sale of any collateral, marshaling of assets
and liabilities, change in corporate or organizational
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;
Section 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;
Section 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;
Section 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;
Section 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
Section 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 order 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 procedural, 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, 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 applicable bankruptcy, receivership or
insolvency laws, or for any other reason.
Article IV
Each Guarantor warrants and represents as follows:
Section 4.1. Relationship to Company. The Board of Directors
of each Guarantor has determined that it 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, 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 purposes 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 inquiry would reveal. It has
adequate means to obtain from Company on a continuing basis
information concerning Company's financial condition, and is 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 V
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 VI
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 VII
Section 7.1. Default. If any Event of Default occurs under
the Note Agreements, then that shall automatically constitute
default under this Guaranty.
Article VIII
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 other 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 other 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 other 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 7.94%.
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.
Section 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 other 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.
Section 8.8.2. If a Purchaser shall obtain payment of any
obligation then due hereunder or under any other 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.
Section 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 IX
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.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Romacorp, Inc.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: NPC Restaurants LP
___________________ By: NPC International,
Inc., general partner
___________________
___________________ By
Name:
Title:
Address for Notices: Roma Holdings, Inc.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Roma Dining LP
___________________ By: Romacorp, Inc.,
general partner
___________________
___________________ By
Name:
Title:
Address for Notices: Roma Franchise Corporation
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Roma Systems, Inc.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Seattle Restaurant
Equipment Company, Inc.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Roma Ft. Worth, Inc.
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Roma Bar Management
Corporation
___________________
___________________ By
___________________ Name:
Title:
Address for Notices: Roma Huntington Beach,
Inc.
___________________
___________________ By
___________________ Name:
Title:
(Form of Joinder 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 the holders of the 7.94% Senior Notes
due May 1, 2006 (the "2006 Notes" and the holders thereof, from
time to time being referred to as the "2006 Noteholders").
W I T N E S S E T H:
Recitals:
1. NPC Management, Inc., a Delaware corporation
("Company"), has entered into separate Note Agreements each dated
as of May 1, 1997, in the original principal amount of
$50,000,000 (as amended, modified, restated and supplemented from
time to time, the "Note Agreements) with the 2006 Noteholders
which are signatories thereto or which may become a party thereto
from time to time.
2. Pursuant to the terms of the Note Agreements, and as a
condition (among others) for making the issue and sale of the
2006 Notes, NPCI and certain Subsidiaries of NPCI executed and
delivered to the 2006 Noteholders a Master Guaranty of even date
with the Note Agreements, 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.
3. 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 2006 Noteholders of the Guaranty by its execution
and delivery of this Joinder Agreement and otherwise by such
action as the 2006 Noteholders may reasonably require.
4. In order to comply with such requirement, the Joining
Guarantor executes and delivers this Joinder Agreement.
Agreements:
Now, in consideration of the credit and financial
accommodations extended and to be extended to Company pursuant to
the Note Agreements and the other Note Documents or otherwise,
which Joining Guarantor hereby agrees have and shall continue to
benefit Joining Guarantor and its shareholders 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 Debt of Guarantors now existing or which
may hereafter arise under the Guaranty and shall be liable
therefor as though 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 2006
Noteholders 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 2006 Noteholders 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 hereunder) shall be deemed paid first against that
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 2006 Noteholders
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, the Note Agreements or any other 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 2006 Noteholder 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 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 shareholders.
4. No Impairment. Nothing herein shall in any manner
impair or extinguish the Guaranty or any of the other 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
Agent each of the following:
5.1 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 2006 Noteholders, 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 (or 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 any 2006
Noteholder shall reasonably request; and
5.2 a legal opinion from the legal counsel for Joining
Guarantor acceptable to Agent in form and substance
satisfactory to the 2006 Noteholders.
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 other
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 the 2006 Noteholders.
The term of this Joinder Agreement shall be until the termination
of the Guaranty as to all Parties.
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 and 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 2006 Noteholders.
11. Amendments, Etc., No amendment or waiver of any
provision of this Joinder Agreement or any other 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 2006 Noteholders 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:
Attest:
Name:
Title:
