$15,000,000
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 8, 1997
AMONG
NPC MANAGEMENT, INC.,
VARIOUS BANKS
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
as Agent
TABLE OF CONTENTS
Page
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH
FINANCIAL RESTRICTIONS. 2
1.1 Definitions. 2
1.2 Other Definitional Provisions. 13
1.3 Interpretation of Agreement. 13
1.4 Compliance with Financial Restrictions. 13
1.5 Accounting Principles. 14
2. COMMITMENTS OF THE BANKS; BORROWING PROCEDURES. 14
2.1 Commitments. 14
2.2 Loan Options. 14
2.3 Borrowing Procedure. 14
2.4 Continuation and/or Conversion of Loans. 15
2.5 Extension of the Termination Date. 15
3. NOTES EVIDENCING LOANS. 16
3.1 Reference Rate Loans; Eurodollar Loans. 16
3.2 Money Market Loans 16
3.3 Evidence of Loans 16
4. [intentionally omitted] 17
5. INTEREST AND FEES. 17
5.1 Interest. 17
5.2 Commitment Fee. 17
5.3 Method of Calculating Interest and Fees. 18
5.4 Agent's Fee. 18
6. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF
THE CREDIT. 18
6.1 Place of Payment. 18
6.2 Prepayments. 18
6.3 Reduction of Credit. 18
6.4 Offset. 19
6.5 Proration of Payments. 19
7. INDEMNIFICATION: EURODOLLAR LOANS. 19
7.1 Indemnity for Funding Losses. 19
7.2 Capital Adequacy. 19
7.3 Additional Provisions Relating to Eurodollar Loans. 20
8. CONDITIONS PRECEDENT TO ALL LOANS. 22
8.1 Notice. 22
8.2 Default. 22
8.3 Insurance. 22
8.4 Warranties. 22
8.5 Certification. 22
9. CONDITIONS PRECEDENT TO EFFECTIVE DATE AND INITIAL LOAN
THEREON OR THEREAFTER. 23
9.1 Notes. 23
9.2 Master Guaranty 23
9.3 Resolutions; Consents and Approvals. 23
9.4 Incumbency. 23
9.5 Opinion. 23
9.6 Sharing Agreement 23
9.7 Officer's Certificate 23
9.8 General. 23
10. REPRESENTATIONS AND WARRANTIES. 24
10.1 Existence. 24
10.2 Authorization. 24
10.3 No Conflicts. 24
10.4 Validity and Binding Effect. 24
10.5 Financial Statements. 24
10.6 Litigation. 25
10.7 Taxes. 25
10.8 Liens. 25
10.9 No Default. 25
10.10 Insurance. 25
10.11 Subsidiaries. 26
10.12 Partnerships. 26
10.13 Regulation U. 26
10.14 Compliance. 26
10.15 Pension Plans. 26
11. COMPANY'S COVENANTS. 26
11.1 Financial Statements and Other Information. 26
11.2 Books, Records and Inspection. 27
11.3 Conduct of Business. 28
11.4 Taxes. 28
11.5 Notices. 28
11.6 Pension Plans. 28
11.7 Expenses. 29
11.8 Indebtedness. 29
11.9 Liens. 29
11.10 Merger, Purchase and Sale. 29
11.11 Nature of Business. 30
11.12 Franchise Rights. 30
11.13 Net Worth. 31
11.14 Leverage Ratio. 31
11.15 Fixed Charge Coverage. 31
11.16 Insurance. 31
11.17 Restricted Payments. 31
11.18 Leases. 31
11.19 NCPI's and Subsidiaries' Stock. 32
11.20 Guaranties. 32
11.21 Investments. 32
11.22 Subsidiaries. 33
11.23 Unconditional Purchase Obligation. 33
11.24 Other Agreements. 33
11.25 Use of Proceeds. 33
11.26 Restrictive Agreements. 33
11.27 Consolidated Fixed Charge Requirement. 34
12. EVENTS OF DEFAULT AND REMEDIES. 34
12.1 Events of Default 34
12.3 Preservation of Security for Unmatured
Reimbursement Obligations 37
12.4 Remedies Cumulative 37
13. RELATIONSHIP AMONG BANKS. 37
13.1 Appointment and Grant of Authority. 37
13.2 Non-Reliance on Agent. 37
13.3 Responsibility of the Agent and Other Matters. 38
13.4 Action on Instructions. 38
13.5 Indemnification. 39
13.6 TCB and Affiliates. 39
13.7 Notice to Holder of Loans. 39
13.8 Successor Agent. 39
14. GENERAL. 40
14.1 Waiver and Amendments. 40
14.2 Notices. 40
14.3 Severability; Participations; Assignments. 41
14.4 Indemnification. 43
14.5 LAW. 43
14.6 Successors. 43
14.7 Subsidiary Reference. 43
14.8 ENTIRE AGREEMENT. 44
14.9 Counterparts. 44
14.10 Interest. 44
14.11 Agreement of NPCI and its Subsidiaries. 45
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated
as of May 8, 1997 (but effective as of March 26, 1997) (this
"Agreement"), is entered into among NPC MANAGEMENT, INC., a
Delaware corporation (the "Company"), the banks listed on the
signature pages hereof (together with such other financial
institutions that from time to time become parties hereto,
individually a "Bank" and collectively the "Banks") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION ("TCB"), as agent for the
Banks.
WHEREAS, NPC International, Inc., a Kansas corporation
("NPCI"), the Banks and TCB as Agent, have entered into the NPCI
Credit Facility (as hereinafter defined) providing for
commitments from such Banks to make loans to NPCI;
WHEREAS, by its execution and delivery hereof the Company
hereby assumes effective as of the Closing Date (as hereinafter
defined), and by its execution and delivery hereof NPCI hereby
assigns to the Company effective as of the Closing Date, all of
the obligations and liabilities of NPCI under the NPCI Credit
Facility and all related instruments (all such obligations and
liabilities collectively the "Assumed Obligations");
WHEREAS, the Company has determined that it is in its best
interest to assume the Assumed Obligations and has voluntarily
requested that the Banks, and the Banks have agreed to,
restructure, rearrange and renew the Assumed Obligations and the
respective commitments of the Banks and the Agent parties to the
NPCI Credit Facility into obligations and commitments hereunder;
WHEREAS, any loans outstanding under any of the NPCI Credit
Facility, on the Closing Date bearing interest at the Interbank
Rate (Reserve Adjusted) (as defined therein) shall be deemed
continued as Eurodollar Loans under this Agreement at such rate
and for the Interest Period with respect thereto under the NPCI
Credit Facility; and
WHEREAS, the parties hereto intend to amend and restate the
Assumed Obligations and the NPCI Credit Facility in its entirety
as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH
FINANCIAL RESTRICTIONS.. DEFINITIONS, INTERPRETATION OF
AGREEMENT AND COMPLIANCE WITH FINANCIAL RESTRICTIONS..
DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH
FINANCIAL RESTRICTIONS.
1.1 Definitions..1 Definitions..1 Definitions. In addition
to the terms defined elsewhere in this Agreement, the following
terms shall have the meanings indicated for purposes of this
Agreement (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
Acquisition Agreement shall mean the Acquisition Agreement
dated as of March 25, 1996 by and among Seattle Crab Co., NPCI
and Skipper's, Inc.
Affiliate of any Person means any other Person that,
directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan
(hereinafter defined)). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election
of directors or managing general partners of such Person; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
Agent means TCB as Agent for the Banks hereunder and each
successor, as provided in Section 13.8, who shall act as Agent.
Alternate Base Rate means a per annum interest rate which is
the greater at any time of (i) the rate of interest then most
recently announced by TCB at Houston, Texas as its prime rate, or
(ii) 0.5% plus the Federal Funds Rate. Such prime rate of TCB is
not necessarily intended to be the lowest rate of interest
determined by TCB in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans
maintained as Alternate Base Rate Loans shall take effect
simultaneously with each change in the Alternate Base Rate. The
Agent shall give notice promptly to the Company and the Banks of
changes in the Alternate Base Rate.
Assignee shall have the meaning set forth in
Section 14.3(c)(i).
Assignment and Acceptance shall have the meaning set forth
in Section 14.3(c)(i).
Assumed Obligations -- see the Preamble.
Bank -- see the Preamble.
Banking Day means any day on which banks are open for
business in Houston, Texas, and with respect to Eurodollar Loans,
on which dealings in foreign currencies and exchange may be
carried on by the Agent in the interbank Eurodollar market.
Capitalized Lease means any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with
GAAP.
Capitalized Lease Obligations shall mean the amount at which
the aggregate rentals due and to become due under all Capitalized
Leases under which NPCI or any Subsidiary thereof, as a lessee,
would be required to be reflected as a liability on the
consolidated balance sheet of NPCI.
Code means the Internal Revenue Code of 1986 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 the Code shall be construed to
also refer to any successor sections.
Commitment means, as to each Bank, the amount set forth
opposite said Bank's name on the signature page hereof (or such
reduced amount as may be fixed by the Company pursuant to
Section 6.3).
Company -- see the Preamble.
Computation Period means any period of four consecutive
fiscal quarters of NPCI ending on the last day of a fiscal
quarter.
Consolidated Funded Debt shall mean all Funded Debt of NPCI
and its Subsidiaries, determined on a consolidated basis
eliminating intercompany items.
Consolidated Net Earnings means the consolidated gross
revenues of NPCI and its Subsidiaries less all operating and non-
operating expenses of NPCI and its Subsidiaries including taxes
on income, all determined in accordance with GAAP consistent with
those followed in the preparation of the financial statements
referred to in Section 10.5, provided that (i) there shall not be
included in revenues (a) any income representing the excess of
equity in any Subsidiary at the date of acquisition over the
investment in such Subsidiary, (b) any equity in the
undistributed earnings of any corporation which is not a
Subsidiary, (c) any earnings of any Subsidiary for any period
prior to the fiscal year of NPCI in which such Subsidiary was
acquired, or (d) any gains resulting from the write-up of assets,
and (ii) capital gains may be included in revenues only to offset
capital losses; provided, further, that for the purpose of
calculating Consolidated Net Earnings with respect to the last
day of the fiscal quarter ended March 26, 1996, and with respect
to the last day of each of the next three successive fiscal
quarters thereafter, there shall not be included in calculating
Consolidated Net Earnings any charges against income in
connection with the Skipper's Sale, or in connection with the
closure or relocation of up to eight Xxxx Xxxx'x locations during
calendar year 1996, which might otherwise be required under GAAP.
Consolidated Net Income Available for Fixed Charges for any
period shall mean the sum of Consolidated Net Earnings during
such period, plus (to the extent deducted in determining
Consolidated Net Earnings during such period) (i) interest
expense, (ii) provision for income taxes, (iii) depreciation and
amortization, and (iv) operating lease expense, in each case on a
consolidated basis.
Consolidated Net Worth means, at any time, the total of
stockholders' equity (including capital stock, additional paid-in
capital and retained earnings after deducting treasury stock,
ESOP obligations and similar contra accounts) of NPCI and its
Subsidiaries calculated in accordance with GAAP.
Credit means the aggregate Commitments of the Banks to make
Loans and issue Letters of Credit under the terms of this
Agreement.
Dollars and the sign "$" mean lawful money of the United
States of America.
EBITDA means Consolidated Net Earnings before interest
expense, provision for taxes (to the extent not excluded from
Consolidated Net Earnings), depreciation, amortization and the
noncash portion of nonrecurring charges (as defined by GAAP).
Effective Date means the date on which all the conditions
precedent set forth in Section 9 are met or waived in writing by
the Agent and the Majority Banks.
ERISA means 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 means any corporation, trade or business
that is, along with NPCI, a member of a controlled group of
corporations or a controlled group of trades or businesses, as
described in sections 414 (b) and 414 (c), respectively, of the
Code.
Eurocurrency Reserve Percentage means, with respect to any
Interest Period, a percentage (expressed as a decimal) equal to
the daily average during such Interest Period of the percentages
in effect on each day of such Interest Period, as prescribed by
the Board of Governors of the Federal Reserve System (or any
successor), for determining reserve requirements applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other
then applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurocurrency
liabilities," as presently defined in Regulation D. For purposes
of this definition, any Eurodollar Loans hereunder shall be
deemed to be "Eurocurrency liabilities" as defined in Regulation
D.
Eurodollar Loan means any Loan which bears interest at a
rate determined with reference to the Interbank Rate (Reserve
Adjusted).
Event of Default means any of the events described in
Section 12.1.
Existing Series A Note shall mean that certain Series A Note
dated as of March 5, 1997 in the original principal amount of
$15,000,000 executed and delivered by NPCI under the NPCI Credit
Facility.
Existing Series B Note shall mean that certain Series B Note
dated as of March 5, 1997 in the original principal amount of
$15,000,000 executed and delivered by NPCI under the NPCI Credit
Facility.
Federal Funds Rate means for any date the weighted average
of the rates on overnight Federal Funds transactions, with
members of the Federal Reserve System only, arranged by Federal
Funds brokers applicable to Federal Funds transactions on that
date. The Federal Funds Rate shall be determined by the Agent on
the basis of reports by Federal Funds brokers to, and published
daily by, the Federal Reserve Bank of New York in the Composite
Closing Quotations for U.S. Government Securities. If such
publication is unavailable or the Federal Funds Rate is not set
forth therein, the Federal Funds Rate shall be determined on the
basis of any other source reasonably selected by the Agent. In
the case of a day which is not a Banking Day, the Federal Funds
Rate shall be the Federal Funds Rate for the immediately
preceding Banking Day.
Fixed Charges shall mean the sum of consolidated
(i) interest expense, (ii) operating lease expense and
(iii) current maturities of Consolidated Funded Debt as reflected
in the GAAP financial statements of NPCI and its Subsidiaries
(which maturities shall be determined as of the last day of the
period consisting of four fiscal quarters for which Fixed Charges
are to be determined).
Franchise Agreement means any franchise agreement between
NPCI or any Subsidiary and Pizza Hut, Inc., as such may be
amended or modified from time to time.
Funded Debt shall mean (i) all Indebtedness having a final
maturity of more than one year from the date of incurrence
thereof (or which is renewable or extendable at the option of the
obligor for a period or periods of more than one year from the
date of incurrence), including all payments in respect thereof
that are required to be made within one year from the date of any
determination of Funded Debt, whether or not included in current
liabilities, (ii) all Capitalized Lease Obligations maturing more
than one year after the date as of which the computation was
made, and (iii) all Guaranties which extend for more than one
year after the date of determination.
GAAP means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of
the accounting profession, which are applicable to the
circumstances as of the date of determination.
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 Indebtedness,
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 Indebtedness or obligation or any property or
assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Indebtedness 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 Indebtedness 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 Indebtedness or obligation of the ability of the
primary obligor to make payment of the Indebtedness or
obligation, or (iv) otherwise to assure the owner of the
Indebtedness 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 Indebtedness for
borrowed money shall be deemed to be Indebtedness equal to the
principal amount of such Indebtedness 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
Indebtedness equal to the maximum aggregate amount of such
obligation, liability or dividend.
Guarantors shall mean, at any time, each Person which is
then a party to the Master Guaranty, which shall be NPCI and each
Subsidiary thereof (other than the Company).
Highest Lawful Rate shall have the meaning set forth in
Section 14.10.
Indebtedness means, without duplication,
(i) any obligation, including, without limitation, any
obligation for borrowed money (and any notes payable and
drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money), which
under GAAP is shown on the balance sheet as a liability
(including any obligation under a Capitalized Lease but
excluding reserves for deferred income taxes and other
reserves to the extent that such reserves do not constitute
an obligation),
(ii) indebtedness which is secured by a Lien on, or
payable out of the proceeds of production from, property
owned by NPCI or any Subsidiary thereof, whether or not the
indebtedness secured thereby shall have been assumed by NPCI
or such Subsidiary,
(iii) guarantees, endorsements (other than
endorsements of negotiable instruments for collection in the
ordinary course of business) and other contingent
liabilities (whether direct or indirect) in connection with
the obligations, stock or dividends of any Person,
(iv) obligations under any contract providing for the
making of loans, advances or capital contributions to any
Person, or for the purchase of any property from any Person,
in each case in order to enable NPCI or any Subsidiary
thereof primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debts, dividends
or expenses of such Person,
(v) obligations under any contract for the purchase of
materials, supplies or other property or services if such
contract (or any related document) requires that payment for
such materials, supplies or other property or services shall
be made regardless of whether or not delivery of such
materials, supplies or other property or services is ever
made or tendered,
(vi) obligations under any contract to rent or lease
(as lessee) any real or personal property if such contract
(or related document) provides that the obligation to make
payments thereunder is absolute and unconditional under
conditions not customarily found in commercial leases then
in general use and requires that the lessee purchase or
otherwise acquire material amounts of securities, assets or
obligations of the lessor,
(vii) obligations under any other contract which,
in economic effect, is substantially equivalent to a
guarantee;
all as determined in accordance with GAAP; provided that
Indebtedness shall not include trade accounts payable, accrued
expenses or income taxes payable, each arising in the ordinary
course of business.
Indebtedness to Pro Forma EBITDA Ratio means, as of the last
day of any fiscal quarter, the ratio of (a) all Indebtedness of
NPCI and its Subsidiaries on such day to (b) Pro Forma EBITDA for
the period of four consecutive fiscal quarters ending on such
day.
Indemnification Agreements shall mean, collectively, the
Lease Indemnification Agreement and the Liability Assumption
Agreement, as those agreements are defined and identified in the
Acquisition Agreement.
Interbank Rate means, for any Interest Period, the rate per
annum at which Dollar deposits in immediately available funds are
offered to the Agent two Banking Days prior to the beginning of
such Interest Period by major banks in the interbank Eurodollar
market as at or about 10:00 a.m., Houston time, for delivery on
the first day of such Interest Period, for the number of days
comprised therein and in an amount equal to the amount of TCB's
Eurodollar Loan for such Interest Period.
Interbank Rate (Reserve Adjusted) means a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Interbank Rate = Interbank Rate
(Reserve Adjusted) 1.0-Eurocurrency Reserve Percentage
Interest Period means, with respect to any Eurodollar Loan,
the one month, two month, three month or six month period
commencing on the applicable borrowing date or conversion date of
such Loan or the last day of the prior Interest Period for such
Loan, as the case may be; provided, however, that no Interest
Period shall extend beyond the Termination Date. Each Interest
Period which would otherwise end on a day which is not a Banking
Day shall end on the next succeeding Banking Day unless such next
succeeding Banking Day is the first Banking Day of a calendar
month, in which case it shall end on the next preceding Banking
Day.
Investment means any investment, made in cash or by delivery
of any kind of property or asset, in any Person, whether by
acquisition of shares of stock or similar interest, Indebtedness
or other obligation or security, or by loan, advance or capital
contribution, or otherwise.
Joinder Agreement shall have the meaning set forth in the
Master Guaranty.
Lien means any mortgage, pledge, hypothecation, judgment
lien or similar legal process, title retention lien, or other
lien or security interest, including, without limitation, the
interest of a vendor under any conditional sale or other title
retention agreement and the interest of a lessor under any
Capitalized Lease.
Loan -- see Section 2.1.
Loan Documents means this Agreement, all Notes, the Master
Guaranty, each Joinder Agreement and any and all agreements or
instruments now or hereafter executed and delivered by the
Company, any Guarantor or any other Person guaranteeing, securing
or otherwise supporting payment or performance of the Notes, this
Agreement or any other Loan Document, as they may be modified or
amended from time to time in accordance with the terms and
provisions thereof.
Majority Banks means those Banks whose share in the
aggregate principal amount of the Loans outstanding constitutes
(or, if no Loans are outstanding, those whose Percentage
constitutes) more than fifty percent (50%).
Margin means (a) initially, 1.00% and (b) on and after any
date specified below on which the Margin is to be adjusted, the
rate per annum set forth in the table below opposite the
applicable Indebtedness to Pro Forma EBITDA Ratio:
Indebtedness
to
Pro Forma EBITDA Margin
2.75 < x 1.50%
2.50 < x < 2.75 1.25%
2.25 < x < 2.50 1.00%
1.50 < x < 2.25 .75%
x < 1.50 .50%
The Margin shall be adjusted, to the extent applicable, 45 days
(or, in the case of the last fiscal quarter of any fiscal year,
90 days) after the end of each fiscal quarter based on the
Indebtedness to Pro Forma EBITDA Ratio as of the last day of such
fiscal quarter; it being understood that if the Company fails to
deliver the financial statements required by Section 11.1(a) or
11.1(b), as applicable, by the 45th day (or, if applicable, the
90th day) after any fiscal quarter, the Margin shall be 1.50%
until such financial statements are delivered and (ii) upon the
effective date of any acquisition permitted.
Master Guaranty shall mean the Master Guaranty executed and
delivered pursuant hereto, to be substantially in the form of
Exhibit O, as amended from time to time.
Maturity Date means, for any Money Market Loan, the date
that is from one (1) to thirty (30) days from the date of such
Loan as selected by the Company in the notice of borrowing, but
not later than the Termination Date.
Money Market Loan means any Loan designated as such which is
made pursuant to Section 11.10(a) based upon the change, if any,
in the Indebtedness to Pro Forma EBITDA Ratio set forth in the
certificate delivered in connection with such acquisition
pursuant to Section 11.1(c).
Money Market Rate means for any Money Market Loan the per
annum interest rate which is quoted by the Agent for such Money
Market Loan at the making thereof.
NPCI -- see the Preamble.
NPCI Credit Facility shall mean that certain Revolving
Credit Agreement dated as of March 5, 1997 among NPCI, the
financial institutions party thereto, and the Agent.
Notes means the Notes referred to in Section 3.
Payment Date means (a) as to any Eurodollar Loan, the last
day of each Interest Period with respect thereto and, if such
Interest Period is in excess of three months, the date that is
three months after the commencement of such Interest Period, and
(b) as to any Reference Rate Loan, and any Money Market Loan, the
last day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Percentage means, for any Bank, the percentage which the
amount of such Bank's Commitment is of the amount of the Credit.
Permitted Guaranty Debt means (1) Indebtedness evidenced by
the Master Guaranty, (2) Indebtedness evidenced by any guaranty
agreement given by any Guarantor in favor of any holder of any
Indebtedness listed on Exhibit H, and (3) Indebtedness evidenced
by any guaranty agreement given by any Guarantor in favor of any
holder of any Indebtedness of the Company that may be incurred by
the Company pursuant to Section 11.8(e)
Permitted Liens means the following, provided that none of
the following materially adversely affect the financial condition
or business operations of NPCI and its Subsidiaries taken as a
whole:
(1) Liens of taxes, assessments, and governmental
charges not yet payable, or not delinquent and payable
without interest or penalty so long as so payable;
(2) Liens of taxes, assessments, governmental charges
and other Indebtedness, the validity of which are being
contested in good faith by appropriate action diligently
pursued, provided that such proceeding shall suspend the
collection of such taxes, assessments, governmental charges,
or other Indebtedness and no property of NPCI or any
Subsidiary thereof would be in any danger of being
forfeited during the period of such contest;
(3) Liens of employees and laborers for current wages,
not yet due, incidental to current operations or current
construction, and Liens of others for current indebtedness,
not yet due, incidental to current construction, including
maintenance, repair, and alteration; mechanics',
materialmen's, workmen's, repairmen's or carriers' liens, or
other similar Liens arising in the ordinary course of
business, or deposits, Liens, or pledges of personal
property to obtain the release of any such Liens;
(4) oil and gas leases, licenses, privileges, other
leases, releases of damages, easements, restrictions on the
use of real property, zoning laws and ordinances, rights-of-
way, minor irregularities in title and other similar
encumbrances (including the right of vendors to occupy and
use real property previously sold to NPCI or any Subsidiary
thereof not immediately required by NPCI or any Subsidiary
thereof for use in its business), not in any case impairing
the use by NPCI or any Subsidiary thereof in its business of
the property affected thereby;
(5) in the case of easements and right-of-way grants
from governmental bodies, the rights of the public;
(6) Liens existing prior to the time of acquisition
upon any real or personal property acquired by NPCI or any
Subsidiary thereof through purchase, merger, consolidation,
or otherwise, whether or not assumed by NPCI or any
Subsidiary thereof;
(7) Liens in connection with the acquisition of
property after the date hereof by way of purchase money
mortgage, conditional sale or other title retention
agreement, Capitalized Lease or other deferred payment
contract, and attaching only to the property being acquired,
if the Indebtedness secured thereby does not exceed 75%
(100% in the case of a Capitalized Lease) of the lesser of
cost or fair market value of such property at the time of
acquisition thereof;
(8) deposits, Liens, or pledges of personal property
or of securities to secure payments of workers'
compensation, unemployment insurance, old age pensions or
other Social Security, or to secure the performance of bids,
tenders, contracts (other than contracts for the payment of
money), or leases to which NPCI or any Subsidiary thereof is
a party, or to secure public or statutory obligations of
NPCI or any Subsidiary thereof, or deposits of cash or
United States government obligations to secure or in lieu of
surety, stay or appeal bonds to which NPCI or any Subsidiary
thereof is a party, or pledges, Liens, or deposits for
similar purposes in the ordinary course of business;
(9) Liens based on workers' compensation claims which
are not due and payable, or the validity of which is being
contested in good faith; and
(10) minor discrepancies and encroachments that might
be disclosed by an accurate survey.
Should any of the preceding Permitted Liens occur, the Banks may
reasonably request, as to all the preceding matters referred to
in paragraphs (1), (2), (3), (7), (8) and (9) above, that
adequate reserves be set aside and maintained by NPCI or any
Subsidiary with respect thereto.
Person means an individual, partnership, corporation, trust,
joint venture, joint stock company, association, unincorporated
organization, government or agency or political subdivision
thereof, or other entity.
Pizza Hut, Inc. means Pizza Hut, Inc., a Delaware
corporation.
Plan means a "pension plan," as such term is defined in
ERISA, established or maintained by NPCI or any ERISA Affiliate
or as to which NPCI or any ERISA Affiliate contributes or is a
member or otherwise may have any liability.
Pro Forma EBITDA means EBITDA provided, however, that for
the purpose of calculating Pro Forma EBITDA (i) with respect to
the last day of the fiscal quarter ended March 26, 1996, and with
respect to the last day of each of the next three successive
fiscal quarters thereafter, Pro Forma EBITDA shall be calculated
without regard for any charges against income in connection with
the Skipper's Sale, or in connection with the closure or
relocation of up to eight Xxxx Xxxx'x locations during calendar
year 1996, which might otherwise be required under GAAP and
(ii) with respect to any Person acquired pursuant to
Section 11.10(a) (the "Acquisition Target"), EBITDA of the
Acquisition Target for each full fiscal quarter included in the
applicable Computation Period prior to such Acquisition
(including the fiscal quarter during which it was acquired) shall
be included and adjusted for tangible operational changes due to
field expense differentials, royalty payments to be made to Pizza
Hut, Inc., contractual rent payments on real estate and equipment
and general and administrative cost differences, all as set forth
in the most recent certificate delivered pursuant to
Section 11.1(c).
Reference Rate Loan means any Loan which bears interest at
or by reference to the Alternate Base Rate.
Reportable Event has the meaning given to such term in
ERISA.
Responsible Officer means the Chief Operating Officer, the
Chief Financial Officer or the Chief Accounting Officer.
Romacorp, Inc. means Romacorp, Inc., a Delaware corporation.
Sharing Agreement shall mean the Sharing Agreement executed
and delivered as of the Closing Date, substantially in the form
of Exhibit P attached hereto, as amended from time to time.
Skipper's Sale shall mean NPCI's sale of the common stock of
Skipper's Inc. in accordance with all of the terms and conditions
of the Acquisition Agreement.
Subsidiary means any Person which is directly or indirectly
controlled by NPCI or its other Subsidiaries or of which or in
which NPCI or its other Subsidiaries at any time own 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.
Supermajority Banks means the Agent and those Banks whose
share in the aggregate principal amount of the Loans outstanding
constitutes (or, if no Loans are outstanding, those whose
Percentages constitute) at least sixty-seven percent (67%).
TCB -- see the Preamble.
Termination Date means March 3, 2000, as such date may from
time to time be extended in accordance with Section 2.5, or such
earlier date as may be fixed by the Company on at least thirty
(30) Banking Days' written notice to the Agent and the Banks.
Termination Event with respect to any Plan means (i) the
institution by NPCI, the PBGC or any other Person of steps to
terminate such Plan, (ii) the occurrence of a Reportable Event
with respect to such Plan which the Agent reasonably believes may
be a basis for the PBGC to institute steps to terminate such
Plan, or (iii) the withdrawal from such Plan (or deemed
withdrawal under section 4062(f) of ERISA) by NPCI or any ERISA
Affiliate if NPCI or such ERISA Affiliate is a "substantial
employer" within the meaning of section 4063 of ERISA.
Unmatured Event of Default means any event or condition
which, with the lapse of time or giving of notice to the Company
or both, would constitute an Event of Default.
Value shall mean, with respect to any asset at any date of
determination, the greater of such asset's book or fair market
value as of the date of determination, with "book value" being
the value of such asset as would appear immediately prior to such
determination on a balance sheet of the owner of such asset
prepared in accordance with GAAP.
1.2 Other Definitional Provisions..2 Other Definitional
Provisions..2 Other Definitional Provisions. Unless otherwise
defined or the context otherwise requires, all financial and
accounting terms used herein or in any certificate or other
document made or delivered pursuant hereto shall be defined in
accordance with GAAP. Unless otherwise defined therein, all
terms defined in this Agreement shall have the defined meanings
when used in any Note or in any certificate or other document
made or delivered pursuant hereto.
1.3 Interpretation of Agreement..3 Interpretation of
Agreement..3 Interpretation of Agreement. A Section, an
Exhibit or a Schedule is, unless otherwise stated, a reference to
a section hereof, an exhibit hereto or a schedule hereto, as the
case may be. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this
Agreement. The words "hereof," "herein," "hereto" and
"hereunder" and words of similar purport when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
1.4 Compliance with Financial Restrictions..4 Compliance
with Financial Restrictions..4 Compliance with Financial
Restrictions. Compliance with each of the financial ratios and
restrictions contained in Section 11 shall, except as otherwise
provided herein, be determined in accordance with GAAP
consistently followed.
1.5 Accounting Principles..5 Accounting Principles..5
Accounting Principles. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP
consistent with those applied in the preparation of the audited
financial statements referred to in Section 11.1 hereof. All
financial information delivered to the Agent pursuant to
Section 11.1 hereof shall be prepared in accordance with GAAP
applied on a basis consistent with those reflected by the initial
financial statements delivered to the Agent pursuant to
Section 10.5, except (i) where such principles are inconsistent
with the requirements of this Agreement and (ii) for those
changes with which the independent certified public accountants
referred to in Section 11.1(a) hereof concur in rendering
unqualified certificates as to financial statements.
2. COMMITMENTS OF THE BANKS; BORROWING PROCEDURES..
COMMITMENTS OF THE BANKS; BORROWING PROCEDURES.. COMMITMENTS OF
THE BANKS; BORROWING PROCEDURES.
2.1 Commitments..1 Commitments..1 Commitments. Subject to
the terms and conditions of this Agreement, each Bank, severally
but not jointly, agrees to make loans (collectively the "Loans"
and individually each a "Loan") to the Company, which Loans the
Company may prepay and reborrow during the period from the date
hereof to, but not including, the Termination Date, in such
amounts as the Company may from time to time request, but not
exceeding in the aggregate at any one time outstanding such
Bank's Commitment less such Bank's Percentage of the aggregate
face amount of all Letters of Credit issued and outstanding at
such time. All Loans made hereunder shall be made by the Banks
on a pro-rata basis according to each Bank's Percentage.
2.2 Loan Options..2 Loan Options..2 Loan Options.
Each Loan shall be either a Reference Rate Loan or a Eurodollar
Loan or a Money Market Loan, except as otherwise provided herein.
Any combination of types of Loans may be outstanding at the same
time; provided, however, that the Company may not have more than
ten borrowings of Eurodollar Loans outstanding at the same time.
2.3 Borrowing Procedure..3 Borrowing Procedure..3
Borrowing Procedure.
(a) Subject to the terms of this Agreement, the
Company shall give the Agent (x) at least three Banking Days'
prior notice of each proposed borrowing of Eurodollar Loans not
later than 10:00 a.m. Houston time on the date of such notice,
(y) at least one Banking Day's prior notice of each proposed
borrowing of Reference Rate Loans not later than 10:00 a.m.
Houston time on the date of such notice and (z) notice not later
than 10:00 a.m. Houston time on the day of each proposed
borrowing of Money Market Loans. Each notice shall be by
telephone (promptly confirmed in writing in the form of Exhibit K
hereto) and shall specify (i) the type of Loans requested, (ii)
in the case of Eurodollar Loans, the initial Interest Period
therefor, (iii) the borrowing date, which shall be a Banking Day,
(iv) the amount of Loans requested and (v) in the case of Money
Market Loans, the Maturity Date therefor. The Agent shall
promptly advise each Bank thereof. Not later than 12:30 p.m.,
Houston time, on the date of a proposed borrowing, each Bank
shall provide the Agent at its principal office in Houston with
immediately available funds covering such Bank's ratable share
(if any) of such borrowing. Notwithstanding the foregoing, the
notice for the initial borrowing hereunder may be made on the
date of the proposed borrowing and the Banks' funding obligations
referred to in the immediately preceding sentence shall be
extended to 2:30 p.m., Houston time.
(b) Each borrowing of Reference Rate Loans and Money
Market Loans shall be in a minimum amount of $100,000 or an
integral multiple thereof. Each borrowing of Eurodollar Loans
shall be in a minimum amount of $500,000 or an integral multiple
thereof.
(c) If the Company requests a borrowing of Money
Market Loans, the Agent shall promptly provide to the Company a
quotation of the interest rate that would be applicable to a
borrowing of Money Market Loans in the amount requested and with
a Maturity Date specified in the notice of borrowing; provided,
however, that in no event shall such quoted rate be less than the
lesser at any time of (i) the rate of interest then most recently
announced by TCB at Houston, Texas as its reference rate, or
(ii) the sum of 0.5% plus the Federal Funds Rate. If such
interest rate is satisfactory to the Company, the Company shall,
not later than the time specified by the Agent when providing the
interest rate quotation, request that such Money Market Loan be
made. The principal amount of each Money Market Loan shall
mature and, shall be payable in full, on its respective Maturity
Date. The Company shall not prepay the principal of any Money
Market Loan without the consent of all Banks.
(d) The Agent, on behalf of the Banks, will pay to the
Company, by crediting its commercial demand deposit account at
TCB, the amount of each Loan on the date designated in the notice
of borrowing upon receipt of the documents required in Section 8
and, if applicable, Section 9, with respect to such Loan.
2.4 Continuation and/or Conversion of Loans..4
Continuation and/or Conversion of Loans..4 Continuation and/or
Conversion of Loans. The Company may elect (i) to continue any
outstanding Eurodollar Loan from the current Interest Period of
such Loan into a subsequent Interest Period to begin on the last
day of such current Interest Period, or (ii) to convert any
outstanding Reference Rate Loan into a Eurodollar Loan or, on the
last day of the current Interest Period, to convert one type of
Loan into another, in each case by giving at least three (3)
Banking Days' prior telephonic notice not later than 10:00 a.m.,
Houston time, on the date of such notice (promptly confirmed in
writing in the form of Exhibit L hereto) to the Agent (which
shall promptly advise each Bank thereof) of such continuation or
conversion, specifying the date, amount and the Interest Period,
if applicable. Absent notice of continuation or conversion, each
Eurodollar Loan shall automatically convert into a Reference Rate
Loan on the last day of the current Interest Period for such
Loan, unless paid in full on such last day. No Loan shall be
converted into a Eurodollar Loan and no Eurodollar Loan shall be
continued less than thirty days before the Termination Date or at
any time that an Event of Default or an Unmatured Event of
Default exists.
2.5 Extension of the Termination Date..5 Extension of
the Termination Date..5 Extension of the Termination Date.
(a) At least 60 but not more than 90 days before any
anniversary of the Effective Date, the Company may, by delivery
of a written request to the Agent in the form of Exhibit B,
request that each Bank agree to extend the then-scheduled
Termination Date by one (1) year.
(b) The Agent shall, upon receipt of any such
extension request, promptly notify each Bank thereof, and request
that each Bank promptly advise the Agent of its approval or
rejection of such request.
(c) Upon receipt of such notification from the Agent,
each Bank may, in its sole discretion, agree to extend for one
(1) year, or decline to extend, the Termination Date, and each
Bank shall, within 30 days of receipt of the notice described in
clause (b), notify the Agent of its approval or denial of such
request. If any Bank does not so notify the Agent, such Bank
shall be deemed to have denied such extension request. The Agent
shall, no later than 30 days following its receipt of any
extension request from the Company, notify the Company as to the
Banks which have approved or denied such request.
(d) If all of the Banks approve any such request, the
Termination Date shall be extended to the date which is one (1)
year after the Termination Date in effect immediately prior to
such extension. If fewer than all of the Banks approve any such
request, the Termination Date shall not be extended.
3. NOTES EVIDENCING LOANS.. NOTES EVIDENCING LOANS.. NOTES
EVIDENCING LOANS.
3.1 Reference Rate Loans; Eurodollar Loans..1 Reference
Rate Loans; Eurodollar Loans..1 Reference Rate Loans;
Eurodollar Loans. The Reference Rate Loans and Eurodollar Loans
of all Banks shall be evidenced by the Company's promissory note
(the "Series A Note") in the form of Exhibit A-1, with
appropriate insertions, which Note shall (i) be dated the
Effective Date (or such other date satisfactory to the Agent),
(ii) be made payable to the order of the Agent for the account of
the Banks ratably in accordance with their Percentages, and (iii)
mature on the Termination Date. The Series A Note shall be an
amendment and restatement of the Existing Series A Note.
3.2 Money Market Loans.2 Money Market Loans.2 Money
Market Loans. The Money Market Loans of all Banks shall be
evidenced by the Company's promissory note (the "Series B Note")
in the form of Exhibit A-2, with appropriate insertions, which
Note shall (i) be dated the Effective Date (or such other date
satisfactory to the Agent), (ii) be made payable to the order of
the Agent for the account of the Banks ratably in accordance with
their Percentages, and (iii) mature on the Termination Date. The
Series B Note shall be an amendment and restatement of the
Existing Series B Note.
3.3 Evidence of Loans.3 Evidence of Loans.3 Evidence of
Loans. All Loans made by the Banks to the Company pursuant to
this Agreement and all payments of principal shall be evidenced
by the Agent in its records or, at its option, on the schedule
attached to the applicable Note, which records or schedule(s)
shall be rebuttable presumptive evidence of the subject matter
thereof, provided that the failure of the Agent to make any
endorsement or other notation, or any error in doing so, shall
not affect the obligations of the Company hereunder or under the
Notes.
4. [intentionally omitted]. [intentionally omitted].
[intentionally omitted]
5. INTEREST AND FEES.. INTEREST AND FEES.. INTEREST AND FEES.
5.1 Interest..1 Interest..1 Interest.
(a) Reference Rate Loan. The unpaid principal of the
Reference Rate Loans shall bear interest prior to maturity at a
rate per annum equal to the Alternate Base Rate in effect from
time to time. Prior to maturity interest on each Reference Rate
Loan shall be payable on each Payment Date therefor and on the
Termination Date.
(b) Eurodollar Loans. The unpaid principal of each
Eurodollar Loan shall bear interest prior to maturity at a rate
per annum equal to the Interbank Rate (Reserve Adjusted) in
effect for each Interest Period therefor plus the Margin from
time to time in effect. Interest on each Eurodollar Loan shall
be payable on each Payment Date therefor and on the Termination
Date.
(c) Money Market Loans. The unpaid principal of each
Money Market Loan shall bear interest prior to maturity at the
Money Market Rate applicable to such Loan. Interest on each
Money Market Loan shall be payable on the Payment Date therefor
and on the Termination Date.
(d) Interest After Maturity. The Company shall pay to
the Banks interest on any amount of principal of any Loan which
is not paid when due, whether at stated maturity, by acceleration
or otherwise, accruing from and including the date such amount
shall have become due to (but not including) the date of payment
thereof in full, at the rate per annum, which is equal to the
greater of (i) 2% in excess of the rate applicable to the unpaid
amount immediately before it became due or (ii) 2% in excess of
the Alternate Base Rate from time to time in effect. Interest
after maturity shall be payable on demand.
5.2 Commitment Fee..2 Commitment Fee..2 Commitment Fee.
The Company agrees to pay to the Banks ratably in accordance with
their Percentages, a commitment fee, for the period commencing on
March 31, 1997 and ending on the earlier of (x) the Termination
Date and (y) the date of termination of the Credit, equal to
0.25% per annum on the daily average of the unused amount of the
Credit. The commitment fee paid to the Banks pursuant to this
Section 5.2 shall be payable on the last day of each March, June,
September and December and on the Termination Date or the date of
termination of the Credit, in each case for any period then
ending for which such commitment fee shall not have been
theretofore paid.
5.3 Method of Calculating Interest and Fees..3 Method of
Calculating Interest and Fees..3 Method of Calculating Interest
and Fees. Interest on each Eurodollar Loan and Money Market Loan
(and on any Reference Rate Loan bearing interest by reference to
the Federal Funds Rate) shall be computed on the basis of a year
consisting of 360 days and paid for actual days elapsed,
calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof.
Interest on each Reference Rate Loan (other than any Reference
Rate Loan described in the preceding sentence) shall be
calculated on the basis of a 365 day or 366 day year, as
applicable, and paid for actual days elapsed. The fees payable
pursuant to Section 5.2 shall be computed on the basis of a year
consisting of 360 days and paid for actual days elapsed.
5.4 Agent's Fee..4 Agent's Fee..4 Agent's Fee. The Company
shall pay the Agent the fees separately agreed to between the
Company and the Agent.
60 PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF THE
CREDIT. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF
THE CREDIT. PAYMENTS, PREPAYMENTS, REDUCTION OR
TERMINATION OF THE CREDIT.
6.1 Place of Payment..1 Place of Payment..1 Place of
Payment. All payments hereunder (including payments with respect
to the Notes) shall be made without set-off or counterclaim and
shall be made to the Agent, for the account of the Banks ratably
in accordance with their Percentage of the Credit, in immediately
available funds prior to 12:30 p.m., Houston time, on the date
due at the Agent's office at 000 Xxxx, Xxxxxxx, Xxxxx 00000, or
at such other place as may be designated by the Agent to the
Company in writing. Any payments received after such time shall
be deemed received on the next Banking Day. The Agent shall
promptly remit in immediately available funds to each Bank its
share of all such payments received by the Agent for the account
of such Bank. Whenever any payment to be made hereunder or under
any Note shall be stated to be due on a date other than a Banking
Day, such payment may be made on the next succeeding Banking Day
(unless, in the case of a payment with respect to a Eurodollar
Loan, such next succeeding Banking Day is the first Banking Day
of a calendar month, in which case such payment shall be due on
the next preceding Banking Day), and such extension of time shall
be included in the computation of interest or any fees.
6.2 Prepayments..2 Prepayments..2 Prepayments. The Company
may from time to time, upon prior written or telephonic notice
received by the Agent (which shall promptly advise each Bank
thereof), prepay the principal of any Loan (other than a Money
Market Loan) in whole or in part without premium, as contemplated
by Section 2.1; provided, however, that (a) any partial
prepayment of principal shall be in a minimum amount of $30,000
or an integral multiple thereof and (b) any prepayment of a
Eurodollar Loan on a day other than the last day of an Interest
Period therefor shall be subject to Section 7.1.
6.3 Reduction of Credit..3 Reduction of Credit..3
Reduction of Credit. The Company may from time to time, upon at
least five (5) Banking Days' prior written or telephonic notice
received by the Agent (which shall promptly advise each Bank
thereof), permanently reduce the amount of the Credit (such
reduction to be made among the Banks according to their
Percentages) to an amount not less than the principal amount of
all outstanding Loans. Any such reduction shall be in a minimum
amount of $250,000 or an integral multiple thereof. The Company
may at any time on like notice terminate the Credit upon payment
in full of the Loans and other liabilities of the Company
hereunder. The Company shall promptly confirm any telephonic
notice of reduction or termination of the Credit in writing.
6.4 Offset..4 Offset..4 Offset. In addition to and not in
limitation of all rights of offset that any Bank or other holder
of any Loan may have under applicable law, each Bank or other
holder of any Loan shall, upon the occurrence of any Event of
Default described in Section 12.1 or any Unmatured Event of
Default described in Section 12.1(e), have the right to
appropriate and apply to the payment of each Loan any and all
balances, credits, deposits, accounts or moneys of the Company
then or thereafter with such Bank or other holder.
6.5 Proration of Payments..5 Proration of Payments..5
Proration of Payments. If any Bank or other holder of a Loan
shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise) on account of
principal of or interest on any Loan in excess of its pro rata
share of payments and other recoveries obtained by all Banks or
other holders on account of principal of and interest on Loans
then held by them, such Bank or other holder shall purchase from
the other Banks or holders such participation in the Loans held
by them as shall be necessary to cause such purchasing Bank or
other holder to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be
rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Company agrees that the Bank
so purchasing a participation from the other Banks under this
Section 6.5 may exercise all its rights of payment, including the
right of set-off, with respect to such participation as fully as
if such Bank were the direct creditor of the Company in the
amount of such participation.
70 INDEMNIFICATION: EURODOLLAR LOANS. INDEMNIFICATION
EURODOLLAR LOANS. INDEMNIFICATION EURODOLLAR LOANS.
7.1 Indemnity for Funding Losses..1 Indemnity for
Funding Losses..1 Indemnity for Funding Losses. The Company
will indemnify each Bank upon demand against any loss or expense
which such Bank may sustain or incur, including, without
limitation, any loss or expense sustained or incurred in
obtaining, liquidating or employing deposits or other funds
acquired to effect funding or maintain a Loan, as a consequence
of (i) any failure of the Company to borrow any Loan on the date
specified therefor in the notice of borrowing with respect to
such Loan, (ii) any failure of the Company to make any payment
when due of any amount due hereunder or under any Note in
connection with any Loan, or (iii) any payment or prepayment of
any Eurodollar Loan on a date other than the last day of the
Interest Period for such Loan. The Company's foregoing
obligations shall survive termination of this Agreement.
7.2 Capital Adequacy..2 Capital Adequacy..2 Capital
Adequacy. If any Bank shall determine at any time after the date
hereof that the adoption of any law, rule or regulation regarding
capital adequacy, or any change therein or in the interpretation
or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any
request or directive regarding capital adequacy (whether or not
having the force of law) from any such authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital
adequacy), by an amount deemed by such Bank to be material, then
the Company shall pay to such Bank upon demand such amount or
amounts, in addition to the amounts payable under the other
provisions of this Agreement or under any Note, as will
compensate such Bank for such reduction. Determination by such
Bank for purposes of this Section 7.2 of the additional amount or
amounts required to compensate such Bank in respect of the
foregoing shall be conclusive in the absence of demonstrable
error. In determining such amount or amounts, such Bank may use
any reasonable averaging and attribution methods.
7.3 Additional Provisions Relating to Eurodollar Loans..3
Additional Provisions Relating to Eurodollar Loans..3 Additional
Provisions Relating to Eurodollar Loans.
(a) Increased Cost. If, as a result of any law,
regulation, treaty or directive, or any change therein, or in the
interpretation or application thereof, or compliance by any Bank
with any request or directive (whether or not having the force of
law) from any court or governmental authority, agency or
instrumentality:
(i) the basis of taxation of payments to any Bank of
the principal of or interest on any Eurodollar Loan (other
than taxes imposed on the overall net income of such Bank by
the jurisdiction in which such Bank has its principal
office) is changed; or
(ii) any reserve, special deposit, special assessment,
or similar requirement against assets of, deposits with or
for the account of, or credit extended by any Bank is
imposed, modified or deemed applicable; or
(iii) any other condition affecting this Agreement
or the Eurodollar Loans is imposed on any Bank or the
interbank eurodollar market;
and such Bank determines that, by reason thereof, the cost to
such Bank of making or maintaining any Eurodollar Loan is
increased, or the amount of any sum receivable by such Bank
hereunder in respect of any Eurodollar Loan is reduced;
then, the Company shall pay to such Bank upon demand (which
demand shall be accompanied by a statement setting forth the
basis for the calculation thereof but only to the extent not
theretofore provided to the Company) such additional amount or
amounts as will compensate such Bank for such additional cost or
reduction (provided such amount has not been compensated for in
the calculation of the Eurocurrency Reserve Percentage).
Determinations by such Bank for purposes of this section of the
additional amounts required to compensate such Bank in respect of
the foregoing shall be conclusive, absent demonstrable error.
The provisions of this Section 7.3(a) shall only be applicable to
Eurodollar Loans which are outstanding on or after the date such
Bank has notified the Company that an event has occurred which
will result in the imposition of a liability on the Company under
this Section 7.3 (a) , it being understood that the Company may
prepay any such Loan without any prepayment fee or penalty
(except as provided in Section 7.1).
(b) Eurodollar Deposits Unavailable or Interest Rate
Unascertainable. If the Company has any Eurodollar Loan
outstanding, or has notified the Agent of its intention to incur
a Eurodollar Loan as provided herein, then in the event that
prior to any Interest Period any Bank shall have determined
(which determination shall be conclusive and binding on the
parties hereto) that deposits of the necessary amount for the
relevant Interest Period are not available to such Bank in the
interbank Eurodollar market or that, by reason of circumstances
affecting such market, adequate and reasonable means do not exist
for ascertaining the Interbank Rate applicable to such Interest
Period, such Bank shall promptly give notice of such
determination to the Company, the Agent and the other Banks, and
(i) any notice of new Eurodollar Loans previously given by the
Company and not yet borrowed shall be deemed a notice to make
Reference Rate Loans and (ii) the Company shall be obligated
either to prepay or to convert any outstanding Eurodollar Loans
to Reference Rate Loans on the last day of the then current
Interest Period with respect thereto, subject to the provisions
of Section 7.1.
(c) Changes in Law Rendering Eurodollar Loans
Unlawful. If at any time due to any new law, treaty or
regulation, or any interpretation thereof by any governmental or
other regulatory authority charged with the administration
thereof, or for any other reason arising subsequent to the date
hereof, it shall become unlawful for any Bank to fund any
Eurodollar Loan which it is committed to make hereunder, the
obligation of such Bank to provide such Loan shall, upon the
happening of such event, forthwith be suspended for the duration
of such illegality. If any such change shall make it unlawful
for such Bank to continue any Eurodollar Loan previously made by
it hereunder, such Bank shall, upon the happening of such event,
notify the Company, the Agent and the other Banks thereof in
writing stating the reasons therefor, and the Company shall on
the earlier of (i) the last day of the then current Interest
Period for such Eurodollar Loan or (ii) if required by such law,
regulation or interpretation, on such date as shall be specified
in such notice, either convert such unlawful Loans to Reference
Rate Loans, or, if available, Money Market Loans, or prepay all
such Eurodollar Loans without any penalty (except as provided in
Section 7.1), to such Bank in full.
(d) Discretion of any Bank as to Manner of Funding.
Subject to the provisions of Section 7.3(e), any Bank shall be
entitled to fund and maintain its funding of all or any part of
its Eurodollar Loans in any manner it elects, it being
understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Bank had
actually funded and maintained each Eurodollar Loan through the
purchase of deposits having a maturity corresponding to the
maturity of such Eurodollar Loan and being an interest rate equal
to the Interbank Rate. Any Bank may, if it so elects, fulfill
any commitment to make Eurodollar Loans by causing a foreign
branch or affiliate to make or continue such Eurodollar Loans,
provided, however, that in such event such Loans shall be deemed
for the purposes of this Agreement to have been made by such
Bank, and the obligation of the Company to repay such Loans shall
nevertheless be to such Bank and shall be deemed held by such
Bank, to the extent of such Loans, for the account of such branch
or affiliate.
(e) Mitigation of Circumstances. Each Bank shall
promptly notify the Company and the Agent of any event of which
it has knowledge which will result in, and will use reasonable
commercial efforts available to it (and not, in such Bank's good
faith judgment, otherwise disadvantageous to such Bank) to
mitigate or avoid, (i) any obligation by the Company to pay any
amount pursuant to Section 7.3(a) or (ii) the occurrence of any
circumstances of the nature described in Section 7.3(b) or 7.3(c)
(and, if any Bank has given notice of any such event described in
clause (i) or (ii) above and thereafter such event ceases to
exist, such Bank shall promptly so notify the Company and the
Agent). Without limiting the foregoing, each Bank will designate
a different funding office if such designation will avoid (or
reduce the cost to the Company of) any event described in clause
(i) or (ii) of the preceding sentence and such designation will
not, in such Bank's sole judgment, be otherwise disadvantageous
to such Bank.
80 CONDITIONS PRECEDENT TO ALL LOANS. CONDITIONS PRECEDENT TO
ALL LOANS. CONDITIONS PRECEDENT TO ALL LOANS.
The obligation of any Bank to make any Loan is subject to
the satisfaction of each of the following conditions precedent:
8.1 Notice..1 Notice..1 Notice. The Agent shall have
received timely notice of such Loan in accordance with Section
2.3.
8.2 Default..2 Default..2 Default. Before and
after giving effect to such Loan, no Event of Default or
Unmatured Event of Default shall have occurred and be continuing.
8.3 Insurance..3 Insurance..3 Insurance. There shall
have been no material change, or notice of prospective material
change (whether such notice is formal or informal) in the nature,
extent, scope or cost of the insurance policies of NPCI or any
Subsidiary listed on Exhibit E which change would have a material
adverse effect on the financial condition of NPCI and its
Subsidiaries taken as a whole or would significantly adversely
affect the ability of the Company or any Guarantor to perform its
respective obligations under this Agreement or under the Note or
any other Loan Document to which it is a party.
8.4 Warranties..4 Warranties..4 Warranties. Before and
after giving effect to such Loan, the warranties in Section 10
(other than the warranty in the last sentence of Section 10.5 and
in Section 10.10) shall be true and correct as though made on the
date of such Loan or Letter of Credit, except for such changes as
are specifically permitted hereunder.
8.5 Certification..5 Certification..5 Certification.
Each request for a Loan shall be deemed to be a certification
that the conditions precedent set out in Sections 8.2, 8.3 and
8.4 have been satisfied.
90 CONDITIONS PRECEDENT TO EFFECTIVE DATE AND INITIAL LOAN
THEREON OR THEREAFTER. CONDITIONS PRECEDENT TO EFFECTIVE
DATE AND INITIAL LOAN THEREON OR THEREAFTER. CONDITIONS
PRECEDENT TO EFFECTIVE DATE AND INITIAL LOAN THEREON OR
THEREAFTER.
The occurrence of the Effective Date and the obligation of
the Banks to make the initial Loan hereunder on or after the
Effective Date is subject to the satisfaction of the conditions
precedent, in addition to the applicable conditions precedent set
forth in Section 8 above, that the Company shall have delivered
to the Agent all of the following, each (i) duly executed and
dated the Effective Date or such earlier date as is satisfactory
to the Agent, (ii) in form and substance satisfactory to the
Agent, and (iii) in sufficient number of signed counterparts to
provide one for each Bank (except for the Notes, of which only
the original shall be signed).
9.1 Notes..1 Notes..1 Notes. The Series A Note and
Series B Note payable to the order of the Agent for the account
of the Banks ratably in accordance with their respective
Commitments.
9.2 Master Guaranty.2 Master Guaranty.2 Master
Guaranty. The Master Guaranty, duly executed by NPCI and each
Subsidiary thereof (other than the Company).
9.3 Resolutions; Consents and Approvals..3 Resolutions;
Consents and Approvals..3 Resolutions; Consents and
Approvals. A copy, duly certified by the secretary or an
assistant secretary of the Company and each Guarantor, of (i) the
resolutions of such Person's Board of Directors authorizing or
ratifying the execution, delivery and performance of the Loan
Documents to which it is a party and its execution, delivery and
performance of the Sharing Agreement, (ii) all documents
evidencing other necessary corporate action with respect to the
Loan Documents to which it is a party and the Sharing Agreement,
and (iii) all approvals or consents, if any, with respect to the
Loan Documents to which it is a party and the Sharing Agreement.
9.4 Incumbency..4 Incumbency..4 Incumbency. A
certificate of the secretary or an assistant secretary of the
Company and each Guarantor certifying the names of such Person's
officers authorized to sign the Loan Documents to which it is a
party and the Sharing Agreement, together with the true
signatures of such officers.
9.5 Opinion..5 Opinion..5 Opinion. An opinion of
Shook, Hardy & Bacon L.L.P., counsel to the Company and each
Guarantor addressed to the Agent and the Banks in substantially
the form of Exhibit J.
9.6 Sharing Agreement.6 Sharing Agreement.6 Sharing
Agreement. The Sharing Agreement, in form and substance
satisfactory to the Banks, executed and delivered by the parties
thereto.
9.7 Officer's Certificate9.7 Officer's Certificate.7
Officer's Certificate. A certificate of a Responsible Officer
certifying to the Agent as to a true, correct and complete
attached copies of the Note Agreements.
9.8 General..8 General..8 General. All other
documents which are provided for hereunder or which the Banks may
reasonably request.
100 REPRESENTATIONS AND WARRANTIES. REPRESENTATIONS AND
WARRANTIES. REPRESENTATIONS AND WARRANTIES.
To induce the Banks to grant the Credit and to make the
Loans, the Company represents and warrants that:
10.1 Existence..1 Existence..1 Existence. The Company
and each corporate Guarantor are corporations duly organized,
validly existing and in good standing under the laws of the
states of their respective incorporation. All of the other
Guarantors, if any, are entities duly organized, validly existing
and in good standing under the laws of the jurisdictions of their
respective organization. The Company and all of the Guarantors
are in good standing and are duly qualified to do business in
each state where, because of the nature of their respective
activities or properties, such qualification is necessary.
10.2 Authorization..2 Authorization..2 Authorization.
The Company and each Guarantor is duly authorized to execute and
deliver the Loan Documents to which it is a party and is and will
continue to be duly authorized to perform its respective
obligations under the Loan Documents to which it is a party. The
Company is and will continue to be duly authorized to borrow
monies hereunder. The execution, delivery and performance by the
Company and each Guarantor and the borrowings hereunder do not
and will not require any consent or approval of any governmental
agency or authority.
10.3 No Conflicts..3 No Conflicts..3 No Conflicts.
The execution, delivery and performance by the Company and each
Guarantor of the Loan Documents to which it is a party (a) do not
and will not conflict with (i) any provision of law applicable to
such Person, (ii) the charter or by-laws of such Person,
(iii) any agreement binding upon such Person, or (iv) any court
or administrative order or decree applicable to such Person and
(b) do not and will not require, or result in, the creation or
imposition of any Lien on any asset of NPCI or any of its
Subsidiaries.
10.4 Validity and Binding Effect..4 Validity and Binding
Effect..4 Validity and Binding Effect. When duly executed and
delivered, the Loan Documents to which it is a party will be,
legal, valid and binding obligations of the Company and the
Guarantors, enforceable against such Person in accordance with
their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights and by
general principles of equity limiting the availability of
equitable remedies.
10.5 Financial Statements..5 Financial Statements..5
Financial Statements. NPCI's audited consolidated financial
statement as at March 26, 1996 and NPCI's Quarterly Report on
Form 10-Q dated December 24, 1996 and filed with the Securities
and Exchange Commission, copies of which have been furnished by
NPCI to the Agent, and which the Agent has furnished to each
Bank, have been prepared in conformity with generally accepted
accounting principles applied on a basis consistent with that of
the preceding fiscal year end period and present fairly the
financial condition of NPCI and its Subsidiaries as at such dates
and the results of their operations for the periods then ended,
subject (in the case of the interim financial statement) to year-
end audit adjustments. Since December 24, 1996 there has been no
material adverse change in the financial condition, assets,
liabilities, business operations, management or prospects of NPCI
and its Subsidiaries taken as a whole.
10.6 Litigation..6 Litigation..6 Litigation. No claims,
litigation, arbitration proceedings or governmental proceedings
are pending or threatened against or are affecting the Company or
any of the Guarantors, the results of which might materially and
adversely affect the financial condition, assets, liabilities,
business operations, management or prospects of the Company, or
the Company and the Guarantors taken as a whole, except those
referred to in a schedule furnished to each Bank
contemporaneously herewith and attached hereto as Exhibit C.
Other than any liability incident to such claims, litigation or
proceedings or provided for or disclosed in the financial
statements referred to in Section 10.5, neither the Company nor
any of the Guarantors has any contingent liabilities which are
material to the Company, or to the Company and the Guarantors
taken as a whole.
10.7 Taxes..7 Taxes..7 Taxes. Each of the Company and the
Guarantors has filed all tax returns, to the best of its
knowledge, which are required to have been filed and has paid, or
made adequate provisions for the payment of all material taxes,
assessments and other governmental charges or levies imposed upon
it, its income or any of its properties, franchises or assets
which are due and payable, except such taxes, assessments and
other governmental charges or levies, if any, as are being
contested in good faith and by appropriate proceedings and as to
which such reserves or other appropriate provisions as may be
required by GAAP have been maintained.
10.8 Liens..8 Liens..8 Liens. None of the assets of the
Company or any of the Guarantors is subject to any Lien, except
for (a) Permitted Liens, (b) Liens disclosed in the financial
statements referred to in Section 10.5; and (c) Liens listed on
Exhibit D.
10.9 No Default..9 No Default..9 No Default. Neither the
Company nor any of the Guarantors is in default under any
agreement or instrument to which the Company or any Guarantors is
a party or by which any of their respective properties or assets
is bound or affected, which default might materially and
adversely affect the financial condition, assets, liabilities,
business operations, management or prospects of the Company, or
the Company and the Guarantors taken as a whole. No Event of
Default or Unmatured Event of Default has occurred and is
continuing.
10.10 Insurance..10 Insurance..10 Insurance. The
schedule that summarizes the property and casualty insurance
program carried by the Company and the Guarantors (Exhibit E
attached hereto) is complete and accurate in all material
aspects. This summary includes the insurer's(s') name(s), policy
numbers(s), expiration date(s), amount(s) of coverage, type(s) of
coverage, the annual premium(s), exclusions, deductibles and self-
insured retention, and describes any other self-insurance or risk
assumption agreed to by the Company or any Guarantors or imposed
upon the Company or any Guarantors by any such insurer.
10.11 Subsidiaries..11 Subsidiaries..11
Subsidiaries. NPCI has no Subsidiaries except as listed on
Exhibit F (as updated from time to time pursuant to Section
11.1(f)). NPCI and its Subsidiaries own the percentage of its
Subsidiaries as set forth on Exhibit F.
10.12 Partnerships..12 Partnerships..12
Partnerships. Neither NPCI nor any of its Subsidiaries is a
partner or joint venturer in any partnership or joint venture
other than the partnerships and joint ventures listed on
Exhibit G (as updated from time to time pursuant to Section
11.1(f)).
10.13 Regulation U..13 Regulation U..13 Regulation
U. (i) Neither NPCI nor any Subsidiary thereof is engaged in the
business of purchasing or selling margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) or extending credit to others for the purpose of
purchasing or carrying margin stock, (ii) no part of the proceeds
of any Loan will be used to purchase or carry directly or
indirectly any margin stock, and (iii) no Loan will be used for
any purpose which would violate any of the margin regulations of
said Board of Governors.
10.14 Compliance..14 Compliance..14 Compliance. The
Company and the Guarantors are in material compliance with all
statutes and governmental rules and regulations applicable to
them.
10.15 Pension Plans..15 Pension Plans..15 Pension
Plans. Each Plan complies in all material respects with all
material applicable statutes and governmental rules and
regulations, and (i) no Reportable Event has occurred and is
continuing with respect to any Plan, (ii) neither NPCI nor any
ERISA Affiliate has withdrawn from any Plan or instituted steps
to do so, and (iii) no steps have been instituted to terminate
any Plan. No condition exists or event or transaction has
occurred in connection with any Plan which could result in the
incurrence by NPCI or any ERISA Affiliate of any material
liability, fine or penalty.
110 COMPANY'S COVENANTS. COMPANY'S COVENANTS. COMPANY'S
COVENANTS.
From the date of this Agreement and thereafter until the
expiration or termination of the Credit and until the Notes and
other liabilities of the Company hereunder are paid in full, the
Company agrees that it will:
11.1 Financial Statements and Other Information..1
Financial Statements and Other Information..1 Financial
Statements and Other Information. Furnish to each Bank:
(a) within ninety-five (95) days after each fiscal
year of NPCI, a copy of the annual audit and Form 10-K report of
NPCI and its Subsidiaries prepared on a consolidated and
consolidating basis in conformity with GAAP and bearing the
unqualified opinion of an independent certified public accountant
of recognized national standing selected by NPCI whose opinion
shall be in scope and substance satisfactory to the Banks;
(b) within fifty (50) days after each quarter (except
the last quarter) of each fiscal year of NPCI, a copy of NPCI's
Quarterly Report on Form 10-Q filed with the Securities and
Exchange Commission and of the unaudited financial statement of
NPCI and its Subsidiaries prepared in the same manner as the
audit report referred to in preceding clause (a) signed by NPCI's
chairman, president or chief financial officer and consisting of
at least a balance sheet as at the close of such quarter, and
statements of income and cash flows for such quarter and for the
period from the beginning of such fiscal year to the close of
such quarter;
(c) together with the financial statements furnished
by the Company under preceding clauses (a) and (b) and in
connection with any acquisition pursuant to Section 11.10(a), a
certificate of a Responsible Officer of the Company in the form
attached hereto as Exhibit M, dated the date of such annual audit
report or such quarterly financial statement or acquisition, as
the case may be, to the effect that no Event of Default or
Unmatured Event of Default has occurred and is continuing or, if
there is any such event, describing it and the steps, if any,
being taken to cure it, and containing a computation of, and
showing compliance with, each of the financial ratios and
restrictions contained in this Section 11;
(d) copies of each filing and report made by NPCI or
any Subsidiary thereof with or to any securities exchange or the
Securities and Exchange Commission and of each communication from
NPCI or any Subsidiary thereof to stockholders generally,
promptly upon the filing or making thereof;
(e) promptly from time to time, a written report of
any change in the list of NPCI's Subsidiaries set forth on
Exhibit F or in the list of partnerships and joint ventures set
forth on Exhibit G;
(f) promptly upon receipt thereof, a copy of any
annual, interim or special audit made by independent accountants,
any management control letter issued by them or any other report
submitted to the Company's Board of Directors or NPCI's Board of
Directors by the independent accountants; and
(g) promptly from time to time, such other information
as the Banks may reasonably request.
11.2 Books, Records and Inspection..2 Books, Records and
Inspection..2 Books, Records and Inspection. Maintain, and
cause each Guarantor to maintain, complete and accurate books and
records in which full and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to its
respective business and activities; permit, and cause each
Guarantor to permit, any authorized representative of any of the
Banks to visit and inspect any of the properties of the Company
or any of the Guarantors, upon reasonable prior notice and during
regular business hours, including any books and records (and to
make extracts therefrom), and to discuss its affairs and finances
as often as the Banks may reasonably request.
11.3 Conduct of Business..3 Conduct of Business..3
Conduct of Business. Maintain and cause each Guarantor to
maintain its respective existence and use its best efforts to
maintain in full force and effect all franchises (including but
not limited to all Pizza Hut, Inc. franchise agreements and
licenses), licenses, leases, contracts and other authority and
rights which are material to the Company, or to the Company and
the Guarantors, taken as a whole.
11.4 Taxes..4 Taxes..4 Taxes. Pay, and cause each
Guarantor to pay, when due, all taxes, assessments and other
governmental charges or levies imposed upon it, its income or any
of its properties, franchises or assets, unless and only to the
extent that the Company or such Guarantor, as the case may be, is
contesting such taxes, assessments and other governmental charges
or levies in good faith and by appropriate proceedings and the
Company or such Guarantor has set aside on its books such
reserves or other appropriate provisions therefor as may be
required by GAAP.
11.5 Notices..5 Notices..5 Notices.
(a) Event of Default; Pension Plans. Immediately upon
learning of the occurrence of any of the following, provide to
each Bank written notice thereof, describing the same and the
steps being taken by the Company or the Subsidiary or the ERISA
Affiliate affected with respect thereto: (i) the occurrence of an
Event of Default or an Unmatured Event of Default or (ii) the
occurrence of a Reportable Event with respect to any Plan, the
institution of any steps by the Company, any ERISA Affiliate, the
PBGC or any other Person to terminate any Plan, or the
institution of any steps by the Company or any ERISA Affiliate to
withdraw from any Plan with respect to which it is a "substantial
employer" within the meaning of section 4063 of ERISA.
(b) Litigation. Notify each Bank (i) promptly upon
learning thereof, of the institution or existence of any
litigation, arbitration or governmental proceedings which is
material to the Company, or to the Company and the Guarantors
taken as a whole, and (ii) of any judgment or decree entered
against the Company or any Guarantor within five business days
after such entry if the aggregate amount of all judgments and
decrees then outstanding against the Company and all the
Guarantors exceed $1,500,000 after deducting (A) the amount with
respect to which the Company or any Guarantor is insured and with
respect to which the insurer has not disclaimed liability, and
(B) the amount for which the Company or any Guarantor is
otherwise indemnified if the terms of such indemnification are
satisfactory to the Banks.
(c) Indebtedness. Notify each Bank of any
Indebtedness incurred in connection with Liens permitted under
Section 11.8(c) if the amount thereof exceeds $1,500,000.
11.6 Pension Plans..6 Pension Plans..6 Pension Plans.
Not permit, and not permit any Guarantor to permit, any condition
to exist in connection with any Plan which might constitute
grounds for the PBGC to institute proceedings to have such Plan
terminated or a trustee appointed to administer such Plan, and
not engage in, or permit to exist or occur, or permit any of the
Guarantors to engage in, or permit to exist or occur, any other
condition, event or transaction with respect to any Plan which
could result in the incurrence by the Company or any of the
Guarantors of any material liability, fine or penalty.
11.7 Expenses..7 Expenses..7 Expenses. Whether or not
any Loan is made hereunder, pay the Banks upon demand for all
reasonable expenses, including reasonable fees of attorneys for
the Agent and the Banks (who may be employees of the Agent and
the Banks) and other legal expenses and costs of collection,
incurred by (i) the Agent in connection with the preparation,
negotiation, execution and amendment of, and waivers to, this
Agreement, the Notes and any document required to be furnished
herewith, and (ii) the Agent and the Banks in connection with the
enforcement of the Company's obligations hereunder or under any
Note. The Company also agrees to (x) indemnify and hold the
Agent harmless from any loss or expense which may arise or be
created by the acceptance of telephonic or other instructions for
making Loans or disbursing the proceeds thereof, and (y) pay, and
save the Agent and the Banks harmless from all liability for, any
stamp or other taxes which may be payable with respect to the
execution or delivery of this Agreement or the issuance of any
Note or any other instrument or document provided for herein or
delivered or to be delivered hereunder or in connection herewith.
The Company's foregoing obligations shall survive any termination
of this Agreement.
11.8 Indebtedness..8 Indebtedness..8 Indebtedness.
Not, and not permit any Guarantor to, incur or permit to exist
any Indebtedness, except: (a) Indebtedness to the Agent and the
Banks under the terms of the Loan Documents; (b) Indebtedness of
the Company having maturities and terms, and which is
subordinated to payment of the Notes in a manner, approved in
writing by the Banks; (c) Indebtedness of the Company or any
Guarantor hereafter incurred in connection with the Liens
permitted by paragraph (7) of the definition of Permitted Liens;
(d) Indebtedness outstanding on the date hereof and listed on
Exhibit H, including, in the case of any Guarantor, any Permitted
Guaranty Debt in respect of such Indebtedness; and (e) other
unsecured Indebtedness of the Company (including Indebtedness
permitted by Section 11.20), and unsecured Indebtedness of any
Guarantor permitted by Section 11.20, provided that such
Indebtedness is incurred when no Event of Default or Unmatured
Event of Default exists or would result therefrom and such
Indebtedness exists under agreements that contain
representations, warranties, covenants and defaults no more
burdensome to the Company or any Guarantor than those set forth
herein; and (f) Indebtedness of the Company to any Guarantor and
Indebtedness of any Guarantor to the Company or any other
Guarantor provided that such Indebtedness is incurred when no
Event of Default or Unmatured Event of Default exists or would
result therefrom.
11.9 Liens..9 Liens..9 Liens. Not, and not permit any
Guarantor to, create or permit to exist any Lien with respect to
any assets now owned or hereafter acquired, except for Permitted
Liens and Liens referred to in Section 10.8.
11.10 Merger, Purchase and Sale..10 Merger, Purchase and
Sale..10 Merger, Purchase and Sale. Not, and not permit any
Guarantor to, be a party to any merger or consolidation; not, and
not permit any Guarantor to, in any one fiscal year, sell,
transfer, convey, lease or otherwise dispose of assets of NPCI
and its Subsidiaries which exceed in the aggregate, for NPCI and
its Subsidiaries taken as a whole, five percent (5%) of the Value
of NPCI's consolidated total assets determined as of the end of
the immediately preceding fiscal year, or purchase or otherwise
acquire all or substantially all the assets of any Person.
Notwithstanding the foregoing:
(a) subject to the next to last sentence of this
Section 11.10, and the prior delivery to the Agent of a
certificate in the form of Exhibit M giving effect thereto, the
Company or any Subsidiary thereof may acquire any other
franchisee of Pizza Hut, Inc. or Romacorp, Inc.;
(b) any wholly-owned Subsidiary of NPCI (other than
the Company) may merge into NPCI or into or with any other wholly-
owned Subsidiary of NPCI;
(c) any wholly-owned Subsidiary of NPCI (other than
the Company) may be consolidated with any other wholly-owned
Subsidiary thereof so long as immediately thereafter 100% of the
voting stock or other ownership interest of the resulting Person
is owned by NPCI or another wholly-owned Subsidiary of NPCI; and
(d) any Guarantor may sell, transfer, convey, lease or
assign any assets to the Company or to any other Guarantor, and
the Company may sell, transfer, convey, lease or assign any
assets to any Guarantor (provided that the Company may not sell,
transfer, convey, lease or assign any franchises).
provided, in each of the cases described in the preceding
clauses, that immediately thereafter and after giving effect
thereto, no Event of Default or Unmatured Event of Default shall
have occurred and be continuing. Neither NPCI nor any Subsidiary
shall use in excess of $50,000,000 of borrowings under the
$185,000,000 Amended and Restated Credit Agreement of even date
herewith (as amended from time to time) for any single
acquisition of, or Investment in, any Person or Persons or the
assets of any Person or Persons without the prior written consent
of the Majority Banks. No other provision in this Agreement
(including, without limitation, any provision in this Agreement
relating to restricted investments or transactions with
affiliates) shall prohibit the Company or any Guarantor from
selling, transferring, conveying, leasing, or assigning any
assets (including, without limitation, financial assets) to the
extent such sale, transfer, conveyance, lease or assignment is
permitted under Section 11.10(d).
11.11 Nature of Business..11 Nature of Business..11
Nature of Business. Engage, and cause each Guarantor to engage,
in substantially the same fields of business as it is engaged in
on the date hereof.
11.12 Franchise Rights..12 Franchise Rights..12
Franchise Rights. Not permit any change, termination, or loss of
its or any Guarantor's rights to operate as a franchisee of Pizza
Hut, Inc., which would have a material adverse effect on the
Company, or on NPCI and its Subsidiaries taken as a whole.
11.13 Net Worth..13 Net Worth..13 Net Worth. Not
permit NPCI's Consolidated Net Worth during any fiscal quarter
ending after December 31, 1996, to be less than the sum of (i)
$83,000,000 plus (ii) fifty percent (50%) of NPCI's Consolidated
Net Earnings for each fiscal quarter ending after December 31,
1996 (excluding any fiscal quarter in which there is a loss).
11.14 Leverage Ratio..14 Leverage Ratio..14 Leverage
Ratio. Not permit the Indebtedness to Pro Forma EBITDA Ratio as
of the last day of any Computation Period to exceed (i) prior to
March 31, 1998, 3.25 to 1.00 and (ii) thereafter, 3.00 to 1.00.
11.15 Fixed Charge Coverage..15 Fixed Charge
Coverage..15 Fixed Charge Coverage. Not permit the ratio of
(a) Pro Forma EBITDA as of the last day of any Computation Period
plus the consolidated operating lease rental expense of NPCI and
its Subsidiaries for such Computation Period to (b) the sum of
(i) consolidated interest expense of NPCI and its Subsidiaries
for such Computation Period, plus (ii) the consolidated operating
lease rental expense of NPCI and its Subsidiaries for such
Computation Period to be less than 1.50 to 1.00 on the last day
of such Computation Period.
For purposes of this Section 11.15, interest expense shall
include, without limitation, implicit interest expenses on
Capitalized Leases.
11.16 Insurance..16 Insurance..16 Insurance.
Maintain, and cause each Guarantor to maintain, insurance to such
extent and against such hazards and liabilities as is commonly
maintained by companies similarly situated, and in any event such
types and in such amounts and with financially sound and
reputable insurers of at least the quality as is described in the
certificate furnished pursuant to Section 10.10. The Company
agrees to notify each Bank prior to any material change in or
cancellation of any such insurance.
11.17 Restricted Payments..17 Restricted Payments..17
Restricted Payments. Not, and not permit any Guarantor to,
purchase or redeem any shares of its stock, declare or pay any
dividends thereon (other than stock dividends), make any
distribution to stockholders as such or set aside any funds for
any such purpose, and not, and not permit any Guarantor to,
prepay, purchase or redeem any subordinated Indebtedness of the
Company or any Guarantor if, before or after giving effect to
such transaction, an Event of Default or Unmatured Event of
Default has occurred and is continuing.
11.18 Leases..18 Leases..18 Leases. Not enter
into or permit to exist, or permit any Guarantor to enter into or
permit to exist, any arrangements for the leasing by it or any of
its Subsidiaries, as lessee, of any real or personal property
under leases (other than Capitalized Leases) if, immediately
before and after giving effect thereto, an Event of Default or
Unmatured Event of Default shall exist or be continuing. For
purposes of determining whether the entering into any lease
results in a breach of Section 11.15, the Company shall make the
calculation required under such Section as of the date such lease
is entered into on assumption that the rental expense that is
expected to be incurred during the twelve-month period following
the entering into the lease was incurred during the twelve-month
period ending on the date of such calculation.
11.19 NCPI's and Subsidiaries' Stock..19 NCPI's and
Subsidiaries' Stock..19 NCPI's and Subsidiaries' Stock. Not,
and not permit any Guarantor to, (i) purchase or otherwise
acquire any shares of the stock of NPCI if, before or after
giving effect to such transaction, an Event of Default or
Unmatured Event of Default has occurred and is continuing, or
(ii) take any action, or permit any Guarantor to take any action,
which will result in a decrease in NPCI's or any Subsidiaries
ownership interest in any Subsidiary (including, without
limitation, the Company).
11.20 Guaranties..20 Guaranties..20 Guaranties. Not,
and not permit any Guarantor to, become a guarantor or surety of,
or otherwise become or be responsible in any manner (whether by
agreement to purchase any obligations, stock, assets, goods or
services, or to supply or advance any funds, assets, goods or
services, or otherwise) with respect to, any undertaking of any
other Person, except for (i) the endorsement, in the ordinary
course of collection, of instruments payable to it or its order,
(ii) as to the Company, guarantees of obligations which do not
exceed $5,000,000.00 in the aggregate at any one time, and
(iii) Permitted Guaranty Debt; provided, however, that in
addition to the foregoing, NPCI may enter into and perform its
obligations under the Indemnification Agreements.
11.21 Investments..21 Investments..21
Investments. Not, and not permit any Guarantor to, make or
permit to exist any Investment in any Person, except for:
(a) Investments in securities with maturities of one
year or less from the date of acquisition issued or fully
guaranteed or insured by the United States of America or any
agency thereof;
(b) Investments in commercial paper maturing in 270
days or less from the date of issuance rated in the highest grade
by a nationally recognized credit rating agency;
(c) Investments in certificates of deposit maturing
within one year from the date of acquisition issued by a bank or
trust company organized under the laws of the United States or
any state thereof having capital, surplus and undivided profits
aggregating at least $100,000,000;
(d) Subject to the last sentence of Section 11.10,
Investments by NPCI or any Subsidiary thereof in other Pizza Hut,
Inc. or Romacorp, Inc. franchisees as long as, before or after
giving effect to such Investment, no Event of Default or
Unmatured Event of Default has occurred which is continuing;
(e) Investments outstanding on the date hereof and
listed on Exhibit I;
(f) other liquid Investments (except Investments
prohibited under Section 11.10 or 11.20), as selected by the
Company or any Guarantor, not to exceed $5,000,000 in the
aggregate at any one time for the Company and all Guarantors; and
(g) Investments permitted by Section 11.8(f).
11.22 Subsidiaries..22 Subsidiaries..22
Subsidiaries. Except as permitted under Section 11.21(d), not,
without the Banks' prior written consent, create or acquire, or
permit any Guarantor to create or acquire, any Subsidiaries in
addition to those existing on the date of this Agreement. The
Company shall immediately cause each Subsidiary of NPCI hereafter
created or acquired by NPCI or any Subsidiary thereof to provide
to the Agent for the benefit of the Banks the following: (a) a
Joinder Agreement, (b) all documents, agreements and other
instruments described in Sections 9.3, 9.4 and 9.5 with respect
to such Subsidiary; and (c) all information regarding the
condition (financial or otherwise), business and operations of
such Subsidiary as the Agent or any Bank may reasonably request.
It is agreed and understood that the agreement of the Company
under this Section 11.22 to cause any Subsidiary of NPCI to
provide to the Agent for the benefit of the Banks a Joinder
Agreement is a condition precedent to the making of the Loans
pursuant to this Agreement and that the entry into this Agreement
by the Banks constitutes good and adequate consideration for the
provision of such Joinder Agreement.
11.23 Unconditional Purchase Obligation..23
Unconditional Purchase Obligation..23 Unconditional Purchase
Obligation. Not, and not permit any Guarantor to, enter into or
be a party to any contract for the purchase or lease of
materials, supplies or other property or services if (a) such
contract requires that payment be made by it regardless of
whether or not delivery is ever made of such materials, supplies
or other property or services and (b) the aggregate amount
payable over the full remaining terms of all such contracts
exceeds $1,500,000 in the aggregate for the Company and the
Guarantors.
11.24 Other Agreements..24 Other Agreements..24
Other Agreements. Not, and not permit any Guarantor to, enter
into any agreement containing any provision which would be
violated or breached by the Company's or any Guarantor's
performance of its obligations hereunder or under any instrument
or document delivered or to be delivered by such Person hereunder
or in connection herewith.
11.25 Use of Proceeds..25 Use of Proceeds..25 Use of
Proceeds. Not permit any proceeds of the Loans to be used,
either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of "purchasing or carrying any
margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended from time to
time, and furnish to each Bank, upon its request, a statement in
conformity with the requirements of Federal Reserve Form U-1 (or
such other form or forms as may be required by Regulation U)
referred to in Regulation U.
11.26 Restrictive Agreements..26 Restrictive
Agreements..26 Restrictive Agreements. Neither the Company, nor
any Guarantor, will, directly or indirectly, enter into, create
or otherwise allow to exist any contract or other consensual
prohibition or restriction on the ability of (A) any Guarantor
(i) to pay dividends or make other distributions or contributions
or advances to the Company, (ii) to repay loans and other
indebtedness owing by it to the Company, (iii) to redeem equity
interests held by it by Company, or (iv) to transfer any of its
assets to the Company, or (B) the Company or any Guarantor to
make any payments required or permitted under the Loan Documents
or otherwise prohibit or restrict compliance by the Company and
the Guarantors thereunder (unless, with respect to subparts (i)
through (iv), such prohibitions or restrictions are not
materially more burdensome on the Guarantors than the
prohibitions and restrictions contained in this Agreement).
11.27 Consolidated Fixed Charge Requirement..27
Consolidated Fixed Charge Requirement..27 Consolidated Fixed
Charge Requirement. The Company 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.
12. EVENTS OF DEFAULT AND REMEDIES.. EVENTS OF DEFAULT AND
REMEDIES.. EVENTS OF DEFAULT AND REMEDIES.
12.1 Events of Default12.1 Events of Default.1 Events of
Default. Each of the following shall constitute an Event of
Default under this Agreement:
(ai Non-Payment. (i) Default in the payment, when
due, of any principal of any Note or any fee hereunder; or
(ii) default, and the continuance thereof for 10 days, in the
payment, when due, of any interest on any Note or any other
amount owing by the Company or any Guarantor to the Agent or the
Banks pursuant to this Agreement or any other Loan Document.
(bi Non-Payment of Other Indebtedness. Default in the
payment when due, whether by acceleration or otherwise (subject
to any applicable grace period), of any Indebtedness of, or
guaranteed by, the Company or any Guarantor (other than the
Indebtedness evidenced by the Notes) in excess of $1,000,000 in
the aggregate for NPCI and its Subsidiaries.
(ci Acceleration of Other Indebtedness. Any event or
condition shall occur which (i) results in the acceleration of
the maturity of any Indebtedness in excess (in the aggregate for
NPCI and its Subsidiaries) of $1,000,000 of, or guaranteed by,
the Company or any Guarantor (other than the Indebtedness
evidenced by the Notes) or (ii) enables the holder or holders of
such other Indebtedness or any trustee or agent for such holders
(any required notice of default having been given and any
applicable grace period having expired) to accelerate the
maturity of such other Indebtedness.
(di Other Obligations. Default in the payment when
due, whether by acceleration or otherwise, or in the performance
or observance (subject to any applicable grace period) of (i) any
material obligation or agreement in excess in the aggregate of
$1,000,000 of the Company or any Guarantor to or with any Bank
(other than any obligation or agreement of the Company or the
Guarantors under the Loan Documents), or (ii) any material
obligation or agreement in excess in the aggregate of $1,000,000
of the Company or any Guarantor to or with any other Person
(other than (x) any such material obligation or agreement
constituting or related to Indebtedness, (y) accounts payable
arising in the ordinary course of business, and (z) any material
obligation or agreement of any Guarantor to the Company or to any
other Guarantor), except only to the extent that the existence of
any such default is being contested by the Company or such
Guarantor, as the case may be, in good faith and by appropriate
proceedings and the Company or such Guarantor shall have set
aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP.
(ei Insolvency. The Company or any of the Guarantors
becomes insolvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they mature, or
applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for the Company or such
Guarantor or a substantial part of the property of the Company or
such Guarantor, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed
for the Company or any of the Guarantors or for a substantial
part of the property of the Company or any of the Guarantors and
is not discharged within 30 days; or any bankruptcy,
reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation
proceeding, is instituted by or against the Company or any of the
Guarantors and, if instituted against the Company or any of the
Guarantors, is consented to or acquiesced in by the Company or
such Guarantor or remains for 30 days undismissed; or any warrant
of attachment is issued against any substantial part of the
property of the Company or any of the Guarantors which is not
released within 30 days of service.
(fi Pension Plans. A Termination Event occurs with
respect to any Plan if, at the time such Termination Event
occurs, such Plan's then "vested liabilities" (as defined in
section 3(25) of ERISA) would exceed the then value of such
Plan's assets.
(gi Financial Covenants; Agreements. The Company
fails to perform or observe any agreement contained in Section
11.8, 11.9, 11.10, 11.13, 11.14, 11.15, 11.16, 11.19, 11.20,
11.21, 11.22 or 11.27 and such failure shall not be remedied
within five (5) days after the chairman, president or chief
financial officer of the Company or any Guarantor obtains actual
knowledge thereof; or the Company fails to deliver the notice
required by Section 11.5(a)(i) or fails to perform or observe
Section 11.26; or the Company or any Guarantor fails to perform
or observe any other agreement set forth in this Agreement or any
other Loan Document to which it is a party (and not constituting
an Event of Default under any of the other subsections of this
Section 12.1) and continuance of such failure for thirty (30)
days after the chairman, president or chief financial officer of
the Company or such Guarantor, as the case may be, obtains actual
knowledge thereof.
(hi Warranty. Any warranty made by the Company or any
Guarantor herein or any other Loan Document to which it is a
party is untrue in any material respect, or any schedule,
statement, report, notice, certificate or other writing furnished
by the Company or any Guarantor to any Bank is untrue in any
material respect on the date as of which the facts set forth
therein are stated or certified, or any certification made or
deemed made by the Company or any Guarantor to any Bank is untrue
in any material respect on or as of the date made or deemed made.
(ii Litigation. There shall be entered against the
Company or any Guarantor one or more judgments or decrees in
excess of $1,500,000 in the aggregate at any one time outstanding
for NPCI and all its Subsidiaries, excluding those judgments or
decrees (i) that shall have been outstanding less than 30
calendar days from the entry thereof or (ii) for and to the
extent which the Company or any Guarantor is insured and with
respect to which the insurer has assumed responsibility in
writing or for and to the extent which the Company or any
Guarantor is otherwise indemnified if the terms of such
indemnification are satisfactory to the Banks.
(ji Franchise Agreement. The Company or any Guarantor
takes any action or fails to take action which results in the
loss of any Franchise Agreement, license or other permit which
would preclude the Company or any Guarantor from operating such
franchise under the name "Pizza Hut", and such loss materially
adversely affects the business operations or profitability of the
Company or such Guarantor.
(ki Pizza Hut, Inc. If (a) Pizza Hut, Inc. applies
for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for itself or a substantial part of
its property, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed
for Pizza Hut, Inc. or for a substantial part of its property and
is not discharged within 30 days; or any bankruptcy,
reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation
proceeding, is instituted by or against Pizza Hut, Inc. and, if
instituted against Pizza Hut, Inc., is consented to or acquiesced
in by Pizza Hut, Inc. or remains for 30 days undismissed; or any
warrant of attachment is issued against any substantial part of
the property of Pizza Hut, Inc. which is not released within 30
days of service; and (b) for the 12-month period ending on the
last day of the fiscal quarter end which coincides with or
immediately precedes the occurrence of the event described in
clause (a), the ratio described in Section 11.15 is less than 2.5
to 1.0.
(l) Nullity of Loan Documents. Except pursuant to the
express terms of any Loan Document, any Loan Document shall, at
any time after its execution and delivery and for any reason,
cease to be in full force and effect or be declared to be null
and void, or the validity or enforceability thereof shall be
contested by NPCI or any Affiliate thereof, or NPCI or any
Affiliate thereof shall deny that it has any or any further
liability or obligations under any Loan Document to which NPCI or
any Subsidiary thereof is a party.
12.2 Remedies. If any Event of Default described in Section
12.1 shall have occurred and be continuing, the Agent shall upon
request of the Supermajority Banks by written notice to the
Company declare the Credit to be terminated and entire unpaid
principal amount of the Notes, all interest accrued and unpaid
thereon and all other amounts payable under this Agreement and
the Notes to be due and payable, whereupon the Credit shall
immediately terminate and such amounts shall, except as otherwise
expressly provided in this Section 12.2, become immediately due
and payable without presentment, demand, protest, declaration or
notice of any kind, all of which are hereby expressly waived by
the Company (except that if an event described in Section 12.1(e)
occurs, the Credit shall immediately terminate and such amounts
shall become immediately due and payable without presentment,
demand, protest, declaration or notice of any kind, all of which
are hereby expressly waived by the Company).
12.3 Preservation of Security for Unmatured Reimbursement
Obligations..3 Preservation of Security for Unmatured
Reimbursement Obligations..3 Preservation of Security for
Unmatured Reimbursement Obligations. In the event that,
following the occurrence of an Event of Default, any Letters of
Credit shall remain outstanding and undrawn upon, the Company
shall immediately pay to the Agent an amount in immediately
available funds equal to 100% of the then aggregate amount of
Letters of Credit outstanding, which funds shall be held by the
Agent in a collateral account to be maintained by the Agent.
Such collateral shall be held for the ratable benefit of TCB as
issuer of such Letters of Credit and the Banks holding
participations therein. Notwithstanding anything herein to the
contrary, such collateral shall be applied solely to unpaid
reimbursement obligations arising in respect of any such Letters
of Credit and/or the payment of TCB's obligations under any such
Letter of Credit when such Letter of Credit is drawn upon. The
Company hereby agrees to execute and deliver to the Agent and the
Banks such security agreements, pledges or other documents as the
Agent or any of the Banks may, from time to time, reasonably
require to perfect the pledge, lien and security interest in and
to any such collateral provided for in this Section 12.3. Upon
the payment or expiry of all such outstanding Letters of Credit
all such collateral shall be released to the Company in due form
at the Company's cost.
12.4 Remedies Cumulative12.4 Remedies Cumulative.4
Remedies Cumulative. No remedy, right or power conferred upon
the Agent or the Banks is intended to be exclusive of any other
remedy, right or power given hereunder or now or hereafter
existing at law, in equity, or otherwise, and all such remedies,
rights and powers shall be cumulative.
13. RELATIONSHIP AMONG BANKS.. RELATIONSHIP AMONG BANKS..
RELATIONSHIP AMONG BANKS.
13.1 Appointment and Grant of Authority..1 Appointment and
Grant of Authority..1 Appointment and Grant of Authority.
Each Bank hereby appoints the Agent, and the Agent hereby agrees
to act, as agent under this Agreement. The Agent shall have and
may exercise such powers under this Agreement as are specifically
delegated to the Agent by the terms hereof, together with such
other powers as are reasonably incidental thereto. Each Bank
hereby authorizes, consents to, and directs the Company to deal
with the Agent as the true and lawful agent of such Bank to the
extent set forth herein.
13.2 Non-Reliance on Agent..2 Non-Reliance on Agent..2 Non-
Reliance on Agent. Each Bank agrees that it has, independently
and without reliance on the Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made
its own credit analysis of NPCI and its Subsidiaries and decision
to enter into this Agreement and that it will, independently and
without reliance upon the Agent, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking
action under this Agreement. The Agent shall not be required to
keep informed as to the performance or observance by the Company
of this Agreement or any other document referred to or provided
for herein or to inspect the properties or books of NPCI or its
Subsidiaries. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks
by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or
business of NPCI, its Subsidiaries (or any of its related
companies) which may come into the Agent's possession.
13.3 Responsibility of the Agent and Other Matters..3
Responsibility of the Agent and Other Matters..3 Responsibility
of the Agent and Other Matters.
(ai The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and those
duties and liabilities shall be subject to the limitations and
qualifications set forth in this Section 13. The duties of the
Agent shall be mechanical and administrative in nature.
(bi Neither the Agent nor any of its directors,
officers or employees shall be liable for any action taken or
omitted (whether or not such action taken or omitted is within or
without the Agent's responsibilities and duties expressly set
forth in this Agreement) under or in connection with this
Agreement or any other instrument or document in connection
herewith, except for gross negligence or willful misconduct.
Without limiting the foregoing, neither the Agent nor any of its
directors, officers or employees shall be responsible for, or
have any duty to examine into (i) the genuineness, execution,
validity, effectiveness, enforceability, value or sufficiency of
(a) this Agreement, the Notes or the other Loan Documents, or (b)
any document or instrument furnished pursuant to or in connection
with this Agreement, the Notes or the other Loan Documents, (ii)
the collectibility of any amounts owed by the Company, (iii) any
recitals or statements or representations or warranties in
connection with this Agreement, the Notes or the other Loan
Documents, (iv) any failure of any party to this Agreement to
receive any communication sent, or (v) the assets, liabilities,
financial condition, results of operations, business or
creditworthiness of NPCI and its Subsidiaries.
(ci The Agent shall be entitled to act, and shall be
fully protected in acting upon, any communication in whatever
form believed by the Agent in good faith to be genuine and
correct and to have been signed or sent or made by a proper
person or persons or entity. The Agent may consult counsel and
shall be entitled to act, and shall be fully protected in any
action taken in good faith, in accordance with advice given by
counsel. The Agent may employ agents and attorney-in-fact and
shall not be liable for the default or misconduct of any such
agents or attorneys-in-fact selected by the Agent with reasonable
care. The Agent shall not be bound to ascertain or inquire as to
the performance or observance by the Company or any Guarantor of
any of the terms, provisions or conditions of this Agreement or
the Notes or the other Loan Documents.
13.4 Action on Instructions..4 Action on Instructions..4
Action on Instructions. The Agent shall be entitled to act or
refrain from acting, and in all cases shall be fully protected in
acting or refraining from acting, under this Agreement or the
Notes or any other instrument or document in connection herewith
or therewith in accordance with instructions in writing from the
Majority Banks (or, if required, all Banks or Supermajority
Banks, as the case may be).
13.5 Indemnification..5 Indemnification..5
Indemnification. To the extent the Company does not reimburse
and save the Agent harmless according to the terms hereof for and
from all costs, expenses and disbursements in connection
herewith, such costs, expenses and disbursements shall be borne
by the Banks ratably in accordance with their Percentages and the
Banks hereby agree on such basis (i) to reimburse the Agent for
all such costs, expenses and disbursements on request and (ii) to
indemnify and save harmless the Agent against and from any and
all losses, obligations, penalties, actions, judgments and suits
and other costs, expenses and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against the Agent, other than as a consequence of the gross
negligence or willful misconduct on the part of the Agent,
arising out of or in connection with this Agreement, the Notes or
the other Loan Documents or any instrument or document in
connection herewith or therewith, or any request of the Banks,
including without limitation the costs, expenses and
disbursements in connection with defending itself against any
claim or liability, or answering any subpoena, related to the
exercise or performance of any of its powers or duties under this
Agreement or the taking of any action under or in connection with
this Agreement, the Notes or the other Loan Documents.
13.6 TCB and Affiliates..6 TCB and Affiliates..6 TCB
and Affiliates. With respect to TCB's Commitment and any Loans
by TCB under this Agreement and any Note and any interest of TCB
in any Note, TCB shall have the same rights and powers under this
Agreement and such Note as any other Bank and may exercise the
same as though it were not the Agent. TCB and its affiliates may
accept deposits from, lend money to, and generally engage, and
continue to engage, in any kind of business with the Company as
if TCB were not the Agent.
13.7 Notice to Holder of Loans..7 Notice to Holder of
Loans..7 Notice to Holder of Loans. The Agent may deem and
treat the payees of the Notes as the owners thereof for all
purposes unless a written notice of assignment, negotiation or
transfer thereof has been filed with the Agent. Any request,
authority or consent of any holder of any Loan shall be
conclusive and binding on any subsequent holder, transferee or
assignee of such Loan.
13.8 Successor Agent..8 Successor Agent..8 Successor
Agent. The Agent may resign at any time by giving 30 days'
written notice thereof to the Banks. Upon any such resignation,
the Banks shall have the right to appoint a successor Agent. If
no successor Agent shall have been appointed by the Banks and
accepted such appointment in connection herewith or therewith
within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, but shall not be
required to, on behalf of the Banks, appoint a successor Agent
who has accepted such appointment. Notwithstanding the foregoing
provisions of this Section 13.8, TCB may at any time resign as
Agent if concurrently therewith an affiliate of TCB agrees to
assume the role of Agent hereunder. After any resigning Agent's
resignation hereunder, the provisions of this Section 13 shall
continue to be effective as to any action taken or omitted
hereunder or in connection herewith prior to such resignation.
14. GENERAL.. GENERAL.. GENERAL.
14.1 Waiver and Amendments..1 Waiver and Amendments..1
Waiver and Amendments. No delay on the part of any Bank or the
holder of any Loan in the exercise of any power or right shall
operate as a waiver thereof, nor shall any single or partial
exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. The
remedies provided for herein are cumulative and not exclusive of
any remedies which may be available to any Bank at law or in
equity. No amendment, modification or waiver of, or consent with
respect to, any provision of this Agreement or any Note or any
other Loan Document shall in any event be effective unless the
same shall be in writing and signed by the Company and the
Majority Banks; provided, however, that in no event shall any
amendment, modification or waiver, or consent with respect to,
Sections 11.13 through 11.15 be effective unless the same shall
be in writing and signed by the Supermajority Banks; provided,
however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a)
waive any of the conditions specified in Section 8 or 9, (b)
increase the amounts or extend the terms of the Banks'
Commitments or subject the Banks to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any
fees hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees hereunder, or
change the amount due on such date, (e) change the percentage of
the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required to
take action hereunder, (f) release any collateral or any
guarantor, if any, from its obligations; (g) change the
definition of Majority Banks or Supermajority Banks; (h) change
any provisions of Section 11.26; or (i) change any provisions of
this Section 14.1; provided, further, that no amendment, waiver
or consent to Section 13 shall be effective unless signed by the
Agent. Any waiver of any provision of this Agreement or the
Notes or any other Loan Document, and any consent to any
departure by the Company or any Guarantor from the terms of any
provision of this Agreement, the Notes or any other Loan
Document, shall be effective only in the specific instance and
for the specific purpose for which given.
14.2 Notices..2 Notices..2 Notices. Except as
otherwise expressly provided herein, any notice hereunder between
the parties shall be in writing (including telegraphic, telex or
telecopy communication) and shall be given to the Company, the
Agent or any Bank at its address, telex number or telecopier
number set forth on the signature pages hereof or at such other
address, telex number or telecopier number as the Company, the
Agent or such Bank may, by written notice, designate as its
address, telex number or telecopier number for purposes of notice
hereunder. All such notices shall be deemed to be given when
transmitted by telex and the appropriate answerback is received,
transmitted by telecopier, delivered to the telegraph office,
personally delivered or, in the case of a mailed notice, three
Banking Days after the date sent by registered or certified mail,
postage prepaid, in each case addressed as specified in this
Section 14.2; provided, however, that notices to the Agent shall
not be effective until actually received by the Agent.
14.3 Severability; Participations; Assignments..3
Severability; Participations; Assignments..3 Severability;
Participations; Assignments.
(ai Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(bi Participations. Any Bank may grant one or more
participations in any Loan, and participant shall have the rights
(and be subject to the obligations) of a Bank set forth in
Sections 6.4, 6.5, 7 and 11.7 hereof as if such participant were
a Bank hereunder; provided, however, that
(i0 no participation contemplated in this Section 14.3
shall relieve the participating Bank from its Commitment or
its other obligations hereunder,
(ii0 such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations,
(iii0 the Company and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and
(iv0 no participant, unless such participant is an
Affiliate of such Bank, or is itself a Bank, shall be
entitled to require such Bank to take or refrain from taking
any action hereunder, except that such Bank may agree with
any participant that such Bank will not, without such
participant's consent, take any actions of the type
described in clauses (a) through (f) of Section 14.1.
(ci Assignments.
(i0 Subject to the prior written consent of the
Company, such consent not to be unreasonably withheld or
delayed (provided that such consent shall not be required if
an Event of Default has occurred and is continuing), each
Bank may assign to any Person (the "Assignee") all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment); provided, however, that (i) each such
assignment shall be of a constant, and not a varying,
percentage of all of the assigning Bank's rights and
obligations under this Agreement, (ii) the total amount of
the Commitment so assigned to an Assignee or to an Assignee
and its affiliates taken as a whole shall equal or exceed
the lesser of (A) $5,000,000, or (B) the sum of the
remaining Commitment held by the assigning Bank, (iii) the
parties to each such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance in
substantially the form attached hereto as Exhibit N
("Assignment and Acceptance"), together with a processing
and recordation fee of $2,000, and (iv) the prior written
consent of the Company shall not be required for any
assignment to such Bank's Affiliate. Upon such execution,
delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
which effective date shall be the date on which such
Assignment and Acceptance is accepted by the Agent, (x) the
Assignee thereunder shall be a party hereto and, to the
Assignment and Acceptance, have the rights and obligations
of a Bank under the Loan Documents and (y) the Bank assignor
thereunder shall be deemed to have relinquished its rights
and to be released from its obligations under the Loan
Documents, to the extent (and only to the extent) that its
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance (and, in the case
of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and
obligations under the Loan Documents, such Bank shall cease
to be a party thereto).
(ii0 By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Assignee
thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes
no representation or warranty and assumes no responsibility
with respect to any statements, warranties or
representations made in or in connection with the Loan
Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Loan Documents or any other instrument or document furnished
pursuant thereto; (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or
any Guarantor or the performance or observance by the
Company or any Guarantor of any of their respective
obligations under the Loan Documents or any other instrument
or document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of the Loan Documents,
together with copies of the most recent financial statements
delivered pursuant to Section 11.1 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such Assignee will, independently and
without reliance upon the Agent, such assigning Bank or any
other Bank 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 this
Agreement; (v) such Assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; and
(vi) such Assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as
a Bank.
(iii0 The Agent shall maintain at its address
referred to on the signature pages hereto a copy of each
Assignment and Acceptance delivered to and accepted by it.
(iv0 Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank, the Agent shall, if such
Assignment and Acceptance has been completed, (i) accept
such Assignment and Acceptance and (ii) give prompt notice
thereof to the Company.
(v0 Anything in this Section 14.3 to the contrary
notwithstanding, any Bank may at any time, without the
consent of any Person, assign and pledge all or any portion
of its Commitment and the Loans owing to it to any Federal
Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall
release the assigning Bank from its obligations hereunder.
14.4 Indemnification..4 Indemnification..4
Indemnification. The Company hereby indemnifies and holds
harmless the Agent and each Bank and each of the Agent's and the
Banks' directors, counsels, officers, employees, agents, persons
controlling or controlled by any of them and their assigns
(collectively the "Indemnified Parties") from and against any and
all losses, claims, damages, costs, liabilities and expenses
(including, without limitation, reasonable attorneys' fees,
disbursements and any out-of-pocket expenses) to which any of the
Indemnified Parties may become subject, whether directly or
indirectly, that result or arise from, or relate to, any claim,
action, lawsuit, or proceeding related to (i) any tender offer,
merger, purchase of stock, purchase of assets or other similar
transaction financed or proposed to be financed in whole or in
part, directly or indirectly, with the proceeds of any of the
Loans or (ii) the execution, delivery, performance or enforcement
of this Agreement or any other Loan Document by any of the
Indemnified Parties; provided, however, that an Indemnified Party
shall refund to the Company any amount received from the Company
for losses, damages, costs and expenses incurred by such Person
but which a court of competent jurisdiction has found resulted
solely from such Person's own gross negligence or willful
misconduct (individually and not as a co-conspirator with the
Company or any affiliate thereof); provided further, that it is
the intention of the Company to indemnify the Indemnified Parties
against the consequences of their own negligence. The foregoing
obligations of the Company shall survive termination of this
Agreement.
14.5 LAW..5 LAW..5 LAW. THIS AGREEMENT AND THE NOTE
SHALL BE CONTRACTS MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF TEXAS.
14.6 Successors..6 Successors..6 Successors. This
Agreement shall be binding upon the Company, the Agent and the
Banks and their respective successors and assigns, and shall
inure to the benefit of the Company, the Agent and the Banks and
the successors and assigns of the Agent and the Banks. The
Company shall not assign its rights or duties hereunder without
the consent of all Banks.
14.7 Subsidiary Reference..7 Subsidiary Reference..7
Subsidiary Reference. Any reference herein to a Subsidiary or
Subsidiaries of any Person, and any financial ratio or
restriction or other provision of this Agreement which is stated
to be applicable to such Person "and its Subsidiaries" or which
is to be determined on a "consolidated" basis, shall apply only
to the extent such Person has any Subsidiaries and, where
applicable, only to the extent any such Subsidiaries are
consolidated with such Person for financial reporting purposes.
14.8 ENTIRE AGREEMENT..8 ENTIRE AGREEMENT..8 ENTIRE
AGREEMENT. THIS AGREEMENT, TOGETHER WITH ALL OTHER WRITTEN
AGREEMENTS BETWEEN THE PARTIES HERETO, IS THE FINAL EXPRESS OF
THE CREDIT AGREEMENT BETWEEN THE PARTIES HERETO, AND SUCH WRITTEN
CREDIT AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR
ORAL CREDIT AGREEMENT OR OF A CONTEMPORANEOUS ORAL CREDIT
AGREEMENT BETWEEN THE PARTIES HERETO.
14.9 Counterparts..9 Counterparts..9 Counterparts.
This Agreement may be executed in any number of counterparts and
by the different parties on separate counterparts and each such
counterpart shall be deemed an original, but all such
counterparts shall together constitute but one and the same
Agreement.
14.10 Interest..10 Interest..10 Interest. All
agreements between the Company, the Agent and any Bank, whether
now existing or hereafter arising and whether written or oral,
are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of demand being made on any Note or
otherwise, shall the amount contracted for, charged, reserved or
received by the Agent or any Bank for the use, forbearance, or
detention of the money to be loaned under this Agreement or
otherwise or for the payment or performance of any covenant or
obligation contained herein exceed the Highest Lawful Rate. If,
as a result of any circumstances whatsoever, fulfillment by the
Company of any provision hereof or of the Notes, at the time
performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury
law or result in the Agent or any Bank having or being deemed to
have contracted for, charged, reserved or received interest (or
amounts deemed to be interest) in excess of the maximum lawful
rate or amount of interest allowed by applicable law to be so
contracted for, charged, reserved or received by the Agent or
such Bank, then, ipso facto, the obligation to be fulfilled by
the Company shall be reduced to the limit of such validity, and
if, from any such circumstance, the Agent or any Bank shall ever
receive interest or anything which might be deemed interest under
applicable law which would exceed the Highest Lawful Rate, such
amount which would be excessive interest shall be refunded to the
Company, or, to the extent (i) permitted by applicable law and
(ii) such excessive interest does not exceed the unpaid principal
balance of the Notes and the amounts owing on other obligations
of the Company to the Agent or any Bank under this Agreement and
the Notes, applied to the reduction of the principal amount owing
on account of the Notes or the amounts owing on other obligations
of the Company to the Agent or any Bank under this Agreement and
the Notes and not to the payment of interest. All sums paid or
agreed to paid to the Agent or any Bank for the use, forbearance
of detention of the indebtedness of the Company, to the Agent or
to any Bank shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full
term of such indebtedness until payment in full of the principal
thereof (including the period of any renewal or extension
thereof) so that the interest on account of such indebtedness
shall not exceed the Highest Lawful Rate. The terms and
provisions of this Section 14.10 shall control and supersede
every other provision hereof and of all other agreements between
the Company, the Agent and the Banks. "Highest Lawful Rate"
shall mean with respect to each Bank, the maximum nonusurious
interest rate, if any, that at any time or from time to time may
be contracted for, taken, reserved, charged, or received with
respect to the Notes or on other amounts, if any, due to such
Bank pursuant to this Agreement or the Notes, under laws
applicable to such Bank which presently in effect, or, to the
extent allowed by law, under such applicable laws that may
hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow. To the
extent required by applicable law in determining the Highest
Lawful Rate with respect to any Bank as of any date, there shall
be taken into account the aggregate amount of all payments and
charges theretofore charged, reserved or received by such Bank
hereunder or under the Notes which constitute or are deemed to
constitute interest under applicable law.
14.11 Agreement of NPCI and its Subsidiaries..11
Agreement of NPCI and its Subsidiaries..11 Agreement of NPCI
and its Subsidiaries. By its execution and delivery hereof, NPCI
agrees to perform, and cause each Subsidiary of NPCI to perform,
each obligation hereunder which the Company has agreed to cause
NPCI and such Subsidiaries to perform, and further agrees to not
take any action which the Company has agreed to not permit NPCI
or any such Subsidiary to take.
14.12 Release of NPCI..12 Release of NPCI..12 Release of
NPCI. The Banks hereby release and discharge NPCI from all of
its obligations under the NPCI Credit Facility, the promissory
notes issued thereunder and the related instruments.
TEXAS BUSINESS AND COMMERCE CODE
26.02 NOTICE
FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the date first written above.
NPC MANAGEMENT, INC.
By:
Name:
Title:
Address: 000 X. 00xx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
NPC INTERNATIONAL, INC.
By:
Name:
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Individually and as Agent
Amount of
Commitment Share
$15,000,000 100% By:
Name:
Title:
Address: 000 Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
EXHIBIT A-1 Form of Series A Note
EXHIBIT B-2 Form of Series B Note
EXHIBIT B Request for Extension of
Termination Date
EXHIBIT C Litigation
EXHIBIT D Liens
EXHIBIT E Insurance
EXHIBIT F Subsidiaries
EXHIBIT G Partnerships/Joint Ventures
EXHIBIT H Indebtedness
EXHIBIT I Investments
EXHIBIT J Opinion of
Counsel to Company
EXHIBIT K Notice of Borrowing
EXHIBIT L Notice of
Continuation/Conversion
EXHIBIT M Compliance Certificate
EXHIBIT N Assignment and Acceptance
EXHIBIT O Form of Master Guaranty
EXHIBIT P Form of Sharing Agreement
