_________________________________________________________________
_________________________________________________________________
__________________________
NPC MANAGEMENT, INC.
(assignee of NPC International, Inc.)
up to $60,000,000 Senior Notes
______________________________________________________
Amended and restated Master Shelf
And Assumption Agreement
_______________________________________________________
Dated effective as of March 26, 1997
_________________________________________________________________
_________________________________________________________________
__________________________
Table of Contents
(not part of Agreement)
Page
1. AUTHORIZATION OF ISSUE OF ORIGINAL SHELF NOTES;
ISSUANCE OF REPLACEMENT NOTES - 2 -
1A. Authorization of Issue of Original Shelf Notes. - 2 -
1B. Issuance of Replacement Notes. - 2 -
1C. Authorization of Assumption of Original Shelf Notes and
Issueof Additional Shelf Notes. - 2 -
2. ASSUMPTION OF ORIGINAL SHELF NOTES; INITIAL CLOSING. - 3 -
2A. Assumption of Original Shelf Notes. - 3 -
2B. Initial Closing. - 3 -
3. PURCHASE AND SALE OF NEW SHELF NOTES - 3 -
3A. Facility - 3 -
3B. Issuance Period - 3 -
3C. Periodic Spread Information - 4 -
3D. Request for Purchase - 4 -
3E. Rate Quotes - 5 -
3F. Acceptance - 5 -
3G. Market Disruption - 5 -
3H. Closing - 6 -
3I. Fees - 6 -
4. CONDITIONS OF INITIAL CLOSING. - 8 -
4A. Certain Documents. - 8 -
4B. Representations and Warranties; No Default. - 9 -
4C. Proceedings. - 9 -
5. CONDITIONS OF CLOSING WITH RESPECT TO NEW SHELF NOTES - 10 -
5A. Certain Documents - 10 -
5B. Representations and Warranties; No Default - 11 -
5C. Purchase Permitted by Applicable Laws - 11 -
5D. Proceedings. - 11 -
6. PREPAYMENTS. - 11 -
6A. Required Prepayments - 11 -
6B. Optional Prepayment With Yield-Maintenance Amount- 12 -
6C. Notice of Optional Prepayment - 12 -
6D. Application of Prepayments. - 12 -
6E. Retirement of Notes. - 12 -
7. AFFIRMATIVE COVENANTS - 13 -
7A. Financial Statements - 13 -
7B. Inspection of Property - 15 -
7C. Covenant to Secure Notes Equally - 15 -
7D. Subsidiary Guarantors. - 16 -
7E. Compliance with Laws, Etc. - 16 -
7F. Maintenance of Insurance. - 16 -
7G. Maintenance of Properties, Etc. - 16 -
7H. Corporate Existence - 17 -
7I. Claims for Labor and Materials - 17 -
8. NEGATIVE COVENANTS - 17 -
8A. Consolidated Net Worth Requirement. - 17 -
8B. Consolidated Fixed Charge Requirement - 17 -
8C. Lien, Debt, and Other Restrictions - 17 -
8D. Interest and Rents Coverage. - 23 -
9. EVENTS OF DEFAULT - 23 -
9A. Acceleration - 23 -
9B. Rescission of Acceleration - 26 -
9C. Notice of Acceleration or Rescission - 26 -
9D. Other Remedies. - 26 -
10. REPRESENTATIONS, COVENANTS AND WARRANTIES. - 27 -
10A. Organization; Qualification; Corporate Authority.- 27 -
10B. Financial Statements. - 27 -
10C. Conflicting Agreements and Other Matters. - 28 -
10D. Governmental Consent. - 28 -
10E. Enforceability. - 28 -
10F. Actions Pending - 28 -
10G. Outstanding Debt. - 29 -
10H. Title to Properties - 29 -
10I. Taxes. - 29 -
10J. Offering of Notes - 29 -
10K. Use of Proceeds. - 29 -
10L. ERISA - 30 -
10M. Disclosure. - 30 -
10N. Investment Company Act. - 30 -
10O. Public Utility Holding Company Act. - 31 -
10P. Environmental Compliance - 31 -
10Q. Funded Debt Agreements. - 31 -
10R. Hostile Tender Offers - 31 -
10S. Subsidiaries. - 31 -
11. REPRESENTATIONS OF THE PURCHASER. - 31 -
11A. Nature of Purchase - 31 -
11B. Source of Funds - 31 -
12. DEFINITIONS AND ACCOUNTING TERMS. - 32 -
12A. Certain Defined Terms. - 32 -
12B. Accounting Principles, Terms and Determinations - 42 -
13. MISCELLANEOUS. - 42 -
13A. Note Payments. - 42 -
13B. Expenses. - 42 -
13C. Consent to Amendments. - 43 -
13D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes. - 43 -
13E. Persons Deemed Owners; Participations. - 44 -
13F. Survival of Representations and Warranties; Entire
Agreement. - 44 -
13G. Successors and Assigns. - 44 -
13H. Disclosure to Other Persons; Confidentiality. - 44 -
13I. Notices. - 45 -
13J. Descriptive Headings. - 45 -
13K. Satisfaction Requirement. - 45 -
13L. Governing Law. - 46 -
13M. Integration. - 46 -
13N. Maximum Interest Payable. - 46 -
13O. Counterparts; Fax. - 47 -
13P. Payments Due on Non-Business Days - 47 -
13Q. Agreement of NPC International and its Subsidiaries.- 47 -
Information Schedule
Exhibit A -- Form of Note
Exhibit B -- Form of Request to Purchase
Exhibit C -- Form of Confirmation of Acceptance
Exhibit D-1A -- Form of Shook, Hardy & Bacon Opinion
Exhibit D-1B -- Form of Opinion of Company's Counsel
Exhibit D-2A -- Form of Shook, Hardy & Bacon Opinion
Exhibit D-2B -- Form of Opinion of Company's Counsel
Exhibit E -- Guaranty Agreement
Exhibit F -- Sharing Agreement
Schedule 8C(2) -- Existing Funded Debt
Schedule 10C -- List of Agreements Restricting Debt
Schedule 10S -- List of Subsidiaries
AMENDED AND RESTATED
MASTER SHELF AND ASSUMPTION AGREEMENT
This AMENDED AND RESTATED MASTER SHELF AND ASSUMPTION
AGREEMENT (the "Agreement") is entered into May 8, 1997, but is
agreed effective as of March 26, 1997, between NPC Management,
Inc., a Delaware corporation (the "Company"), and The Prudential
Insurance Company of America ("Prudential").
WITNESSETH
WHEREAS, NPC International, Inc., a Kansas corporation
("NPC International"), and Prudential have entered into that
certain ▇▇▇▇▇▇▇ and Restated Master Shelf Agreement dated as of
June 9, 1994 (Restated as of June 29, 1995) (the "Original Note
Agreement") pursuant to which NPC International issued and sold
to Prudential its senior notes with the interest rates and
maturities as described therein in the aggregate original
principal amount of $30,000,000 (collectively, the "Original
Shelf Notes");
WHEREAS, in connection with a corporate restructuring
(the "Restructuring"), and by its execution and delivery hereof,
NPC International hereby assigns to the Company, and by its
execution and delivery hereof, the Company assumes, effective as
of the Initial Date of Closing (as hereinafter defined), all of
the obligations and liabilities of NPC International existing
immediately prior to such assignment under the Original Note
Agreement and all Original Shelf Notes (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 Prudential, and Prudential has agreed
to, restructure, rearrange and renew the Assumed Obligations and
the obligations of Prudential under the Original Shelf Agreement
into obligations hereunder;
WHEREAS, the transfer of assets and liabilities from
NPC International to the Company, as well as certain other
actions incident to the Restructuring, would constitute an Event
of Default under the Original Note Agreement;
WHEREAS, as partial consideration for Prudential's
agreement to consent to the Restructuring and for other good and
valuable consideration (i) the Company agrees, and Prudential
agrees, to amend and restate the Original Note Agreement as
hereinafter set forth, and (ii) each of the Guarantors
(hereinafter defined) will guarantee the payment of the Original
Shelf Notes and any Notes issued by the Company in replacement
thereof or otherwise pursuant hereto.
NOW, THEREFORE, to accomplish the matters contemplated
by the immediately preceding recitals and in consideration of the
mutual premises herein contained and for other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Original Note Agreement is hereby amended and
restated in its entirety as follows:
1. AUTHORIZATION OF ISSUE OF ORIGINAL SHELF NOTES;
ISSUANCE OF REPLACEMENT NOTES1. AUTHORIZATION OF ISSUE OF
ORIGINAL SHELF NOTES; ISSUANCE OF REPLACEMENT NOTES1.
AUTHORIZATION OF ISSUE OF ORIGINAL SHELF NOTES; ISSUANCE OF
REPLACEMENT NOTES
1A. Authorization of Issue of Original Shelf Notes..
Authorization of Issue of Original Shelf Notes.. Authorization
of Issue of Original Shelf Notes. Pursuant to the Original Note
Agreement, NPC International has previously authorized, issued
and delivered the Original Shelf Notes in the aggregate original
principal amount of $30,000,000; dated the respective dates of
issue thereof; to mature on the dates, to bear interest on the
respective unpaid balances thereof from the respective dates
thereof at the respective rates per annum and to have such other
particular terms as are specified in such Original Shelf Notes.
The term "Original Shelf Notes" as used herein shall include each
Original Shelf Note delivered pursuant to any provision of this
Agreement and each Note delivered in substitution or exchange for
any such Original Shelf Note pursuant to any such provision.
1B. Issuance of Replacement Notes.. Issuance of
Replacement Notes.. Issuance of Replacement Notes. Upon the
request of any Purchaser of the Original Shelf Notes, the Company
agrees to execute and deliver to such Purchaser, in replacement
of one or more of the Original Shelf Notes executed by NPC
International and now outstanding, one or more Notes registered
in the name of Prudential or another Purchaser or that of
Prudential's or such others Purchaser's nominee, as Prudential or
such other Purchaser shall request, in the aggregate principal
amount equal to the aggregate principal amount of the Original
Shelf Notes so exchanged. No Purchaser shall be under any
obligation to request the issuance of such replacement notes and,
in the event that no such request is made, the existing Original
Shelf Notes shall remain valid and binding obligations of the
Company by virtue of its assumption under paragraph 2A below.
1C. Authorization of Assumption of Original Shelf
Notes and Issue
of Additional Shelf Notes.. Authorization of Assumption of
Original Shelf Notes and Issueof Additional Shelf Notes..
Authorization of Assumption of Original Shelf Notes and Issueof
Additional Shelf Notes. The Company has authorized the
assumption of the Original Shelf Notes in the aggregate original
principal amount of $30,000,000 and will authorize the issue of
additional senior promissory notes in the aggregate principal
amount of $30,000,000 (collectively called the "New Shelf Notes"
and individually called a "New Shelf Note" which, along with the
Original Shelf Notes and any Notes of the Company issued in
replacement thereof, are herein referred to as the "Shelf
Notes"); to be dated the date of issue thereof; to mature, in the
case of each New Shelf Note so issued, no more than 9 years after
the date of original issuance thereof; to have an average life,
in the case of each New Shelf Note so issued, of no more than 7
years after the date of original issuance thereof; to bear
interest on the unpaid balance thereof from the date thereof at
the rate per annum, and to have such other particular terms, as
shall be set forth, in the case of each Shelf Note so issued, in
the Confirmation of Acceptance with respect to such New Shelf
Note delivered pursuant to paragraph 3F; and to be substantially
in the form of Exhibit A attached hereto. The term "New Shelf
Notes" as used herein shall include each New Shelf Note delivered
pursuant to this Agreement and each New Shelf Note delivered in
substitution or exchange therefor. Shelf Notes which have (a)
the same final maturity, (b) the same installment payment dates,
(c) the same installment payment amounts (as a percentage of the
original principal amount of each Note), (d) the same interest
rate, (e) the same interest payment periods, and (f) the same
original date of issuance are herein called a "Series" of Shelf
Notes.
2. ASSUMPTION OF ORIGINAL SHELF NOTES; INITIAL
CLOSING.. ASSUMPTION OF ORIGINAL SHELF NOTES; INITIAL CLOSING..
ASSUMPTION OF ORIGINAL SHELF NOTES; INITIAL CLOSING.
2A. Assumption of Original Shelf Notes.. Assumption
of Original Shelf Notes.. Assumption of Original Shelf Notes.
Effective upon the Initial Date of Closing (as hereinafter
defined), the Company hereby expressly assumes the due and
punctual payment of the principal of, Yield-Maintenance Amount,
if any, and interest on all the Original Shelf Notes according to
their tenor, and the due and punctual performance and observance
of all of the covenants and conditions to be performed by NPC
International under the Original Note Agreement, as such
agreement is amended and restated hereby. In connection with
such assumption, NPC International is hereby released from its
obligations as primary obligor under the Original Note Agreement
and the Original Shelf Notes. Nothing is this paragraph 2A,
however, shall affect the obligations of NPC International under
the Guaranty Agreement.
2B. Initial Closing.. Initial Closing.. Initial
Closing. To evidence the assumption contemplated by paragraph 2A
and in furtherance thereof, on May 8, 1997, or any other date
upon which the Company and Prudential may mutually agree (the
"Initial Closing" or "Initial Date of Closing"), the Company and
each Guarantor shall execute and deliver the documents
contemplated by this Agreement.
3. PURCHASE AND SALE OF NEW SHELF NOTES. PURCHASE
AND SALE OF NEW SHELF NOTES. PURCHASE AND SALE OF NEW SHELF
NOTES.
3A. Facility. Facility. Facility. Prudential is
willing to consider, in its sole discretion and within limits
which may be authorized for purchase by Prudential and Prudential
Affiliates from time to time, the purchase of New Shelf Notes
pursuant to this Agreement. The willingness of Prudential to
consider such purchase of New Shelf Notes, together with the
willingness of Prudential to maintain the $30,000,000 aggregate
principal amount of outstanding Original Shelf Notes
(constituting an aggregate principal amount of $60,000,000) is
herein called the "Facility". At any time, the aggregate
principal amount stated in the preceding sentence, minus the
original principal amount of Original Shelf Notes stated in
paragraph 1A, minus the aggregate principal amount of New Shelf
Notes purchased and sold pursuant to this Agreement prior to such
time, minus the aggregate principal amount of Accepted Shelf
Notes (as hereinafter defined) which have not yet been purchased
and sold hereunder prior to such time, is herein called the
"Available Facility Amount" at such time. NOTWITHSTANDING THE
WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF NEW SHELF
NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS
UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE
NEW SHELF NOTES OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH
RESPECT TO SPECIFIC PURCHASES OF NEW SHELF NOTES, AND THE
FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY
PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
3B. Issuance Period. Issuance Period. Issuance
Period. New Shelf Notes may be issued and sold pursuant to this
Agreement until the earlier of (i) June 29, 1997 and (ii) the
thirtieth day after Prudential shall have given to the Company,
or the Company shall have given to Prudential, a notice stating
that it elects to terminate the issuance and sale of New Shelf
Notes pursuant to this Agreement (or if such thirtieth day is not
a Business Day, the Business Day next preceding such thirtieth
day). The period during which New Shelf Notes may be issued and
sold pursuant to this Agreement is herein called the "Issuance
Period".
3C. Periodic Spread Information. Periodic Spread
Information. Periodic Spread Information. Not later than 9:30
A.M. (New York City local time) on a Business Day during the
Issuance Period if there is an Available Facility Amount on such
Business Day, the Company may request by telecopier or telephone,
and Prudential will, to the extent reasonably practicable,
provide to the Company on such Business Day (or, if such request
is received after 9:30 A.M. (New York City local time) on such
Business Day, on the following Business Day), information (by
telecopier or telephone) with respect to various spreads at which
Prudential or Prudential Affiliates might be interested in
purchasing Notes of different average lives; provided, however,
that the Company may not make such requests more frequently than
once in every five Business Days or such other period as shall be
mutually agreed to by the Company and Prudential. The amount and
content of information so provided shall be in the sole
discretion of Prudential but it is the intent of Prudential to
provide information which will be of use to the Company in
determining whether to initiate procedures for use of the
Facility. Information so provided shall not constitute an offer
to purchase New Shelf Notes, and neither Prudential nor any
Prudential Affiliate shall be obligated to purchase New Shelf
Notes at the spreads specified. Information so provided shall be
representative of potential interest only for the period
commencing on the day such information is provided and ending on
the earlier of the fifth Business Day after such day and the
first day after such day on which further spread information is
provided. Prudential may suspend or terminate providing
information pursuant to this paragraph 3C in its sole discretion.
3D. Request for Purchase. Request for Purchase.
Request for Purchase. The Company may from time to time during
the Issuance Period make requests for purchases of New Shelf
Notes (each such request being herein called a "Request for
Purchase"). Each Request for Purchase shall be made to
Prudential by telecopier and confirmed by nationwide overnight
delivery service, and shall (i) specify the aggregate principal
amount of New Shelf Notes covered thereby, which shall not be
less than $5,000,000 and not be greater than the Available
Facility Amount at the time such Request for Purchase is made,
(ii) specify the principal amounts, final maturities, installment
payment dates and amounts and interest payment periods (quarterly
or semi-annual in arrears) of the New Shelf Notes covered
thereby, (iii) specify the use of proceeds of such New Shelf
Notes, (iv) specify the proposed Closing Day of the purchase and
sale of such New Shelf Notes, which shall be a Business Day
during the Issuance Period not less than 5 Business Days and not
more than 20 Business Days after the making of such Request for
Purchase, (v) specify the number of the account and the name and
address of the depository institution to which the purchase
prices of such New Shelf Notes are to be transferred on the
Closing Day for such purchase and sale, (vi) certify that the
representations and warranties contained in paragraph 10 are true
on and as of the date of such Request for Purchase except to the
extent of changes caused by the transactions herein contemplated
and that there exists on the date of such Request for Purchase no
Event of Default or Default, and (vii) be substantially in the
form of Exhibit B attached hereto. Each Request for Purchase
shall be in writing and shall be deemed made when received by
Prudential.
3E. Rate Quotes. Rate Quotes. Rate Quotes. Not
later than five Business Days after the Company shall have given
Prudential a Request for Purchase pursuant to paragraph 3D,
Prudential may provide (by telephone promptly thereafter
confirmed by telecopier, in each case no earlier than 9:30 A.M.
and no later than 1:30 P.M. New York City local time) interest
rate quotes for the several principal amounts, maturities,
installment payment schedules, and interest payment periods of
New Shelf Notes specified in such Request for Purchase. Each
quote shall represent the interest rate per annum payable on the
outstanding principal balance of such New Shelf Notes until such
balance shall have become due and payable, at which Prudential or
a Prudential Affiliate would be willing to purchase such New
Shelf Notes at 100% of the principal amount thereof.
3F. Acceptance. Acceptance. Acceptance. Within
30 minutes after Prudential shall have provided any interest rate
quotes pursuant to paragraph 3E or in the event that due to
conditions in the market place it shall not be feasible to hold
such interest rate quotes open 30 minutes, such shorter period as
Prudential may specify to the Company at the time such interest
rate quotes are provided to the Company (such period herein
called the "Acceptance Window"), the Company may, subject to
paragraph 3G, elect to accept such interest rate quotes as to not
less than $5,000,000 aggregate principal amount of the New Shelf
Notes specified in the related Request for Purchase. Such
election shall be made by an Authorized Officer of the Company
notifying Prudential by telephone or telecopier within the
Acceptance Window (but not earlier than 9:30 A.M. or later than
2:00 P.M., New York City local time) that the Company elects to
accept such interest rate quotes, specifying the New Shelf Notes
(each such Shelf Note being herein called an "Accepted Shelf
Note") as to which such acceptance (herein called an
"Acceptance") relates. The day the Company notifies an
Acceptance with respect to any Accepted Shelf Notes is herein
called the "Acceptance Day" for such Accepted Shelf Notes. Any
interest rate quotes as to which Prudential does not receive an
Acceptance within the Acceptance Window shall expire, and no
purchase or sale of New Shelf Notes hereunder shall be made based
on such expired interest rate quotes. Subject to paragraph 3G
and the other terms and conditions hereof, the Company agrees to
sell to Prudential or a Prudential Affiliate, and Prudential
agrees to purchase, or to cause the purchase by a Prudential
Affiliate of, the Accepted Shelf Notes at 100% of the principal
amount of such New Shelf Notes. As soon as practicable following
the Acceptance Day, the Company, Prudential and each Prudential
Affiliate which is to purchase any such Accepted Shelf Notes will
execute a confirmation of such Acceptance substantially in the
form of Exhibit C attached hereto (herein called a "Confirmation
of Acceptance").
3G. Market Disruption. Market Disruption. Market
Disruption. Notwithstanding the provisions of paragraph 3F, if
Prudential shall have provided interest rate quotes pursuant to
paragraph 3E and thereafter prior to the time an Acceptance with
respect to such quotes shall have been notified to Prudential in
accordance with paragraph 3F there shall occur a general
suspension, material limitation, or significant disruption of
trading in securities generally on the New York Stock Exchange or
in the domestic public market for U.S. Treasury securities or
derivatives thereof, then such interest rate quotes shall expire,
and no purchase or sale of New Shelf Notes hereunder shall be
made based on such expired interest rate quotes. If the Company
thereafter notifies Prudential of the Acceptance of any such
interest rate quotes, such Acceptance shall be ineffective for
all purposes of this Agreement, and Prudential shall promptly
notify the Company that the provisions of this paragraph 3G are
applicable with respect to such Acceptance.
3H. Closing. Closing. Closing.
3H(i) Closings -- Not later than 11:30 A.M. (New
York City local time) on the Closing Day for any Accepted
Shelf Notes, the Company will deliver to each Purchaser
listed in the Confirmation of Acceptance relating thereto at
the offices of the Prudential Capital Group, at ▇▇▇▇ ▇▇▇▇
▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the Accepted Shelf
Notes to be purchased by such Purchaser in the form of a one
or more Notes in authorized denominations as such Purchaser
may request for each Series of Accepted Shelf Notes to be
purchased on the Closing Day, dated the Closing Day and
registered in such Purchaser's name (or in the name of its
nominee), against payment of the purchase price thereof by
transfer of immediately available funds for credit to the
Company's account specified in the Request for Purchase of
such New Shelf Notes.
3H(ii) Rescheduled Closings -- If the Company fails to
tender to any Purchaser the Accepted Shelf Notes to be
purchased by such Purchaser on the scheduled Closing Day for
such Accepted Shelf Notes as provided above in this
paragraph 3H, or any of the conditions specified in
paragraph 5 shall not have been fulfilled by the time
required on such scheduled Closing Day, the Company shall,
prior to 1:00 P.M., New York City local time, on such
scheduled Closing Day notify such Purchaser in writing
whether (i) such closing is to be rescheduled (such
rescheduled date to be a Business Day during the Issuance
Period not less than one Business Day and not more than 10
Business Days after such scheduled Closing Day (the
"Rescheduled Closing Day")), and certify to such Purchaser
that the Company reasonably believes that it will be able to
comply with the conditions set forth in paragraph 5 on such
Rescheduled Closing Day and that the Company will pay the
Delayed Delivery Fee in accordance with paragraph 3I(iii) or
(ii) such closing is to be canceled as provided in paragraph
3I(iv). In the event that the Company shall fail to give
such notice referred to in the preceding sentence, such
Purchaser may at its election, at any time after 1:00 P.M.,
New York City local time, on such scheduled Closing Day,
notify the Company in writing that such closing is to be
canceled as provided in paragraph 3I(iv).
3I. Fees. Fees. Fees.
3I(i) Facility Fee -- At the time of the execution
of this Agreement by the Company and Prudential, the Company will
pay to Prudential in immediately available funds a fee (herein
called the "Facility Fee") in an amount equal to $30,000.
3I(ii) Issuance Fee -- The Company will pay to
Prudential in immediately available funds a fee (herein called
the "Issuance Fee") on each Closing Day in an amount equal to
0.25% (25/100ths of 1%) of the aggregate principal amount of New
Shelf Notes sold on such Closing Day.
3I(iii) Delayed Delivery Fee -- If the closing of the
purchase and sale of any Accepted Shelf Note is delayed for any
reason beyond the original Closing Day for such Accepted Shelf
Note, the Company will pay to Prudential (a) on the Cancellation
Date or actual closing date of such purchase and sale and (b) if
earlier, the next Business Day following 90 days after the
Acceptance Day for such Accepted Shelf Notes and on each Business
Day following 90 days after the prior payment hereunder, a fee
(herein called the "Delayed Delivery Fee") calculated as follows:
(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, i.e., the bond
equivalent yield per annum of such Accepted Shelf Note, "MMY"
means Money Market Yield, i.e., the yield per annum on a
commercial paper investment of the highest quality selected by
Prudential on the date Prudential receives notice of the delay in
the closing for such Accepted Shelf Notes having a maturity date
or dates the same as, or closest to, the Rescheduled Closing Day
or Rescheduled Closing Days (a new alternative investment being
selected by Prudential each time such closing is delayed); "DTS"
means Days to Settlement, i.e., the number of actual days elapsed
from and including the originally scheduled Closing Day with
respect to such Accepted Shelf Note (in the case of the first
such Delayed Delivery Fee payment with respect to such Accepted
Shelf Note) or from and including the date of the next preceding
Delayed Delivery Fee payment (in the case of any subsequent
Delayed Delivery Fee payment with respect to such Accepted Shelf
Note) to but excluding the date of such Delayed Delivery Fee
payment; and "PA" means Principal Amount, i.e., the principal
amount of the Accepted Shelf Note for which such calculation is
being made. In no case shall the Delayed Delivery Fee be less
than zero. Nothing contained herein shall obligate any Purchaser
to purchase any Accepted Shelf Note on any day other than the
Closing Day for such Accepted Shelf Note, as the same may be
rescheduled from time to time in compliance with paragraph 3H.
3I(iv) Cancellation Fee -- If the Company at any
time notifies the Purchasers in writing that the Company is
canceling the closing of the purchase and sale of any Accepted
Shelf Note, or if the Purchasers notify the Company in writing
under the circumstances set forth in the last sentence of
paragraph 3H that the closing of the purchase and sale of such
Accepted Shelf Note is to be canceled, or if the closing of the
purchase and sale of such Accepted Shelf Note is not consummated
on or prior to the last day of the Issuance Period (the date of
any such notification, or the last day of the Issuance Period, as
the case may be, being herein called the "Cancellation Date"),
the Company will pay the Purchasers in immediately available
funds an amount (the "Cancellation Fee") calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price
(as reasonably determined by Prudential) of the Hedge Treasury
Note(s) on the Cancellation Date over the bid price (as
reasonably determined by Prudential) of the Hedge Treasury
Notes(s) on the Acceptance Day for such Accepted Shelf Note by
(b) such bid price; and "PA" has the meaning ascribed to it in
paragraph 3I(iii). The foregoing bid and ask prices shall be as
reported by Telerate Systems, Inc. (or, if such data for any
reason ceases to be available through Telerate Systems, Inc., any
publicly available source of similar market data). Each price
shall be based on a U.S. Treasury security having a par value of
$100.00 and shall be rounded to the second decimal place. In no
case shall the Cancellation Fee be less than zero.
4. CONDITIONS OF INITIAL CLOSING.. CONDITIONS OF
INITIAL CLOSING.. CONDITIONS OF INITIAL CLOSING.
Prudential's obligation to execute and deliver this Agreement is
subject to the satisfaction, prior to or at the Initial Closing,
of the following conditions:
4A. Certain Documents.. Certain Documents.. Certain
Documents. Prudential shall have received the following, each
dated the date of the Initial Date of Closing:
(i) The replacement Note(s), if any, requested by each
applicable Purchaser pursuant to paragraph 1B.
(ii) Certified copies of the resolutions of the Board
of Directors of NPC International approving the
Restructuring and all of the documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to the Restructuring.
(iii) Certified copies of the resolutions of the
Board of Directors of the Company approving the assumption
of the Original Shelf Notes, this Agreement and the Notes,
and all documents evidencing other necessary corporate
action and government approvals, if any, with respect to the
assumption of the Original Shelf Notes, this Agreement and
the Notes.
(iv) Certified copies of the resolutions of each Board
of Directors (or other governing body) of each Guarantor
approving the execution and delivery of the Guaranty
Agreement and all documents evidencing other necessary
corporate, company, or partnership action and governmental
approvals, if any, with respect to the Guaranty Agreement.
(v) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the Authorized Officers of the Company
authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(vi) A certificate of the Secretary or an Assistant
Secretary of each Guarantor certifying the names and true
signatures of the officers of each Guarantor authorized to
sign the Guaranty Agreement and the other documents to be
delivered hereunder or thereunder;
(vii) Certified copies of the Certificate of
Incorporation and By-laws of the Company.
(viii) Certified copies of the Articles of
Incorporation and By-laws of NPC International.
(ix) A favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇ & Bacon,
special counsel to the Company satisfactory to Prudential
and substantially in the form of Exhibit D-1A attached
hereto and as to such other matters as Prudential may
reasonably request and a favorable opinion of ▇▇▇▇▇ ▇.
▇▇▇▇▇, General Counsel of the Company, satisfactory to
Prudential and substantially in the form of Exhibit D-1B
attached hereto and as to such matters as Prudential may
reasonably request. The Company hereby directs each such
counsel to deliver such opinion and understands and agrees
that each Purchaser receiving such an opinion will and is
hereby authorized to rely on such opinion.
(x) Good standing certificates for the Company and NPC
International from the Secretary of State of Delaware and
Kansas, respectively, dated of a recent date and such other
evidence of the status of the Company and NPC International
as Prudential may reasonably request.
(xi) The Guaranty Agreement in substantially the form
of Exhibit E attached hereto and the Sharing Agreement in
substantially the Form of Exhibit F attached hereto.
(xii) Certified copies of the Certificate of
Incorporation and By-laws (or other applicable charter or
organizational documents) of each Guarantor (other than NPC
International).
(xiii) Good standing certificates for each Guarantor
from the Secretary of State of their respective state of
incorporation or organization, as applicable, dated as of a
recent date.
(xiv) Copies of the agreements constituting the
Bank Facility as each has been amended as of the date
hereof.
(xv) Additional documents or certificates with respect
to legal matters or corporate or other proceedings related
to the transaction contemplated hereby as may be reasonably
requested by Prudential.
4B. Representations and Warranties; No Default..
Representations and Warranties; No Default.. Representations and
Warranties; No Default. The representations and warranties
contained in paragraph 10 shall be true on and as of such Initial
Date of Closing, except to the extent of changes caused by the
transactions herein contemplated; there shall exist on such
Initial Date of Closing no Event of Default or Default; and the
Company shall have delivered to such Purchaser an Officer's
Certificate, dated such Initial Date of Closing, to both such
effects.
4C. Proceedings.. Proceedings.. Proceedings. All
corporate, company, partnership and other proceedings taken or to
be taken in connection with the transactions contemplated hereby
and all documents incident thereto shall be satisfactory in
substance and form to Prudential, and Prudential shall have
received all such counterpart originals or certified or other
copies of such documents as Prudential may reasonably request.
5. CONDITIONS OF CLOSING WITH RESPECT TO NEW SHELF
NOTES5. CONDITIONS OF CLOSING WITH RESPECT TO NEW SHELF NOTES5.
CONDITIONS OF CLOSING WITH RESPECT TO NEW SHELF NOTES. The
obligation of any Purchaser to purchase and pay for any Accepted
Shelf Notes is subject to the satisfaction, on or before the
Closing Day for such Accepted Shelf Notes, of the following
conditions:
5A. Certain Documents. Certain Documents. Certain
Documents. Such Purchaser shall have received the following,
each dated the date of the applicable Closing Day:
(i) The Accepted Shelf Note(s) to be purchased by such
Purchaser.
(ii) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and the
Accepted Shelf Notes, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to this Agreement and the Accepted Shelf
Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Company certifying the names and
true signatures of the Authorized Officers of the Company
authorized to sign this Agreement and the Accepted Shelf
Notes and the other documents to be delivered hereunder.
(iv) Certified copies of the Certificate of
Incorporation and By-laws of the Company.
(v) A favorable opinion of ▇▇▇▇▇, Hardy & Bacon,
special counsel to the Company satisfactory to such
Purchaser and substantially in the form of Exhibit D-2A
attached hereto and as to such other matters as such
Purchaser may reasonably request and a favorable opinion of
▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company, satisfactory
to such Purchaser and substantially in the form of Exhibit D-
2B attached hereto and as to such matters as such Purchaser
may reasonably request. The Company hereby directs each
such counsel to deliver such opinion, agrees that the
issuance and sale of any Accepted Shelf Notes will
constitute a reconfirmation of such direction, and
understands and agrees that each Purchaser receiving such an
opinion will and is hereby authorized to rely on such
opinion.
(vi) A good standing certificate for the Company from
the Secretary of State of Delaware dated of a recent date
and such other evidence of the status of the Company as such
Purchaser may reasonably request.
(vii) Certified copies of Requests for Information
or Copies (Form UCC-11) or equivalent reports of a recent
date listing all effective financing statements which name
the Company or any Guarantor (under its present name and
previous names) as debtor and which are filed in the offices
of the Secretaries of State of Kansas, Texas and such other
states in which a "chief executive office" (as such term is
used in the Uniform Commercial Code) is located as may be
reasonably requested, with copies of such financing
statements.
(viii) Additional documents or certificates with
respect to legal matters or corporate or other proceedings
related to the transactions contemplated hereby including,
without limitation, documents or certificates similar to
those required by paragraph 4 hereof, as may be reasonably
requested by such Purchaser.
5B. Representations and Warranties; No Default5B.
Representations and Warranties; No Default5B. Representations
and Warranties; No Default. The representations and warranties
contained in paragraph 10 shall be true on and as of such Closing
Day, except to the extent of changes caused by the transactions
herein contemplated; there shall exist on such Closing Day no
Event of Default or Default; and the Company shall have delivered
to such Purchaser an Officer's Certificate, dated such Closing
Day, to both such effects.
5C. Purchase Permitted by Applicable Laws5C.
Purchase Permitted by Applicable Laws5C. Purchase Permitted
by Applicable Laws. The purchase of and payment for the Accepted
Shelf Notes to be purchased by such Purchaser on the terms and
conditions herein provided (including the use of the proceeds of
such Notes by the Company) shall not violate any applicable law
or governmental regulation (including, without limitation,
Section 5 of the Securities Act or Regulation G, T or X of the
Board of Governors of the Federal Reserve System) and shall not
subject such Purchaser to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law or
governmental regulation, and such Purchaser shall have received
such certificates or other evidence as it may request to
establish compliance with this condition.
5D. Proceedings.. Proceedings.. Proceedings. All
corporate, company, partnership and other proceedings taken or to
be taken in connection with the transactions contemplated hereby
and all documents incident thereto shall be satisfactory in
substance and form to Prudential, and Prudential shall have
received all such counterpart originals or certified or other
copies of such documents as Prudential may reasonably request.
6. PREPAYMENTS.. PREPAYMENTS.. PREPAYMENTS. Any
Accepted Shelf Notes shall be subject to prepayment with respect
to any required prepayments set forth in such Accepted Shelf
Notes as provided in paragraph 6A and with respect to the
optional prepayments permitted by paragraph 6B. The Original
Shelf Notes shall be subject to prepayment with respect to the
required prepayments specified in the Original Shelf Notes, as
provided in paragraph 6A, and the optional prepayments permitted
by paragraph 6B.
6A. Required Prepayments. Required Prepayments.
Required Prepayments. Until the Original Shelf Notes shall have
been paid in full, the Company shall apply to the prepayment of
the Original Shelf Notes, without premium, such principal
amounts, together with interest thereon to the prepayment dates,
as set forth in the Original Shelf Notes. The remaining
outstanding principal amount(s) of the Original Shelf Notes,
together with interest accrued thereon, shall become due and
payable on the maturity date(s) set forth in the Original Shelf
Notes. The Shelf Notes of each Series shall be subject to
required prepayments, if any, set forth in the Shelf Notes of
such Series.
6B. Optional Prepayment With Yield-Maintenance Amount.
Optional Prepayment With Yield-Maintenance Amount. Optional
Prepayment With Yield-Maintenance Amount. The Notes of each
Series shall be subject to prepayment, in whole at any time or
from time to time in part (in integral multiples of $1,000,000),
at the option of the Company, at 100% of the principal amount so
prepaid plus interest thereon to the prepayment date and the
Yield-Maintenance Amount, if any, with respect to each such Note.
Any partial prepayment of Notes pursuant to this paragraph 6B
shall be applied in the case of the Original Shelf Notes, in
satisfaction of the required payments of principal in inverse
order of their scheduled due dates and, in the case of the
partial prepayment of a Series of Shelf Notes, in satisfaction of
required payments of principal in inverse order of their
scheduled due dates.
6C. Notice of Optional Prepayment6C. Notice of
Optional Prepayment6C. Notice of Optional Prepayment. The
Company shall give the holder of each Note to be prepaid pursuant
to paragraph 6B irrevocable written notice of such prepayment not
less than 10 Business Days prior to the prepayment date,
specifying such prepayment date, specifying the aggregate
principal amount of either the Original Shelf Notes or the Series
of Shelf Notes to be prepaid on such date, identifying each Note
held by such holder, and the principal amount of each such Note,
to be prepaid on such date and stating that such prepayment is to
be made pursuant to paragraph 6B. Notice of prepayment having
been given as aforesaid, the principal amount of the Notes
specified in such notice, together with interest thereon to the
prepayment date and together with the Yield-Maintenance Amount,
if any, herein provided, shall become due and payable on such
prepayment date. The Company shall, on or before the day on
which it gives written notice of any prepayment pursuant to
paragraph 6B, give telephonic notice of the principal amount of
the Notes to be prepaid and the prepayment date to each
Significant Holder which shall have designated a recipient for
such notices in the Information Schedule attached hereto or by
notice in writing to the Company.
6D. Application of Prepayments.. Application of
Prepayments.. Application of Prepayments. In the case of each
prepayment of less than the entire unpaid principal amount of all
outstanding Original Shelf Notes or any Series Shelf Notes, the
amount to be prepaid shall be applied pro rata to all outstanding
Original Shelf Notes or any Series Shelf Notes, as the case may
be (including, for the purpose of this paragraph 6D only, all
Notes prepaid or otherwise retired or purchased or otherwise
acquired by the Company or NPC International or any of their
Subsidiaries or Affiliates other than by prepayment pursuant to
paragraph 6A or 6B), according to the respective unpaid principal
amounts thereof. The amounts so prepaid on each outstanding Note
shall be credited against the last maturing installment or
installments of principal then remaining unpaid on such Note.
6E. Retirement of Notes.. Retirement of Notes..
Retirement of Notes. The Company and NPC International shall
not, and shall not permit any of their Subsidiaries or Affiliates
to, prepay or otherwise retire in whole or in part prior to their
stated final maturity (other than by prepayment pursuant to
paragraph 6A or 6B or upon acceleration of such final maturity
pursuant to paragraph 9A), or purchase or otherwise acquire,
directly or indirectly, Notes of any Series held by any holder
unless the Company, NPC International or such Subsidiary or
Affiliate shall have offered to prepay or otherwise retire or
purchase or otherwise acquire, as the case may be, the same
proportion of the aggregate principal amount of Notes of such
Series held by each other holder of Notes of such Series at the
time outstanding upon the same terms and conditions. Any Notes
so prepaid or otherwise retired or purchased or otherwise
acquired by the Company, NPC International or any of their
Subsidiaries or Affiliates shall not be deemed to be outstanding
for any purpose under this Agreement, except as provided in
paragraph 6D.
7. AFFIRMATIVE COVENANTS. AFFIRMATIVE COVENANTS.
AFFIRMATIVE COVENANTS. During the Issuance Period and thereafter
so long as any Note shall remain unpaid, the Company covenants as
follows:
7A. Financial Statements. Financial Statements.
Financial Statements. The Company covenants that it will deliver
to each Significant Holder in triplicate:
(i) as soon as practicable and in any event within 50
days after the end of each quarterly period (other than the
last quarterly period) in each fiscal year, consolidated
statements of income, consolidated statements of
shareholder's equity and consolidated statements of cash
flows of NPC International and its Subsidiaries (including
the Company) for the period from the beginning of the
current fiscal year to the end of such quarterly period, and
consolidated balance sheets of NPC International and its
Subsidiaries (including the Company) as at the end of such
quarterly period, setting forth in each case in comparative
form figures for the corresponding period or as of the end
of such corresponding period, as applicable, in the
preceding fiscal year, all in reasonable detail and certi
fied by an authorized financial officer of NPC
International, subject to changes resulting from year-end
adjustments; provided, however, that, so long as such
delivery is made within the time requirement set forth above
in this clause (i), delivery pursuant to clause (iv) below
of copies of the Quarterly Report on Form 10-Q of NPC
International for such quarterly period filed with the
Securities and Exchange Commission shall be deemed to
satisfy the requirements of this clause (i);
(ii) as soon as practicable and in any event within 50
days after the end of each quarterly period in each fiscal
year (or, at the Company's option, more frequently), balance
sheets at the end of each fiscal quarter and income
statements for the period from the beginning of the current
fiscal year to the end of such fiscal quarter for each
material operating division of NPC International (whether
incorporated or not), setting forth in each case in
comparative form figures as of the end of the corresponding
period or for the corresponding period, as applicable, in
the preceding fiscal year, all in reasonable detail and
certified by an authorized financial officer of NPC
International as fairly presenting the financial condition
and operations of such divisions in accordance with prior
practices of NPC International consistently applied;
provided, however, that, so long as such delivery is made
within the time requirement set forth above in this clause
(ii), it is agreed and acknowledged that the continued
delivery of the financial statements currently provided by
NPC International in its director packages shall be deemed
to satisfy the requirements of this clause (ii);
(iii) as soon as practicable and in any event
within 95 days after the end of each fiscal year,
consolidated statements of income, shareholder's equity and
cash flows of NPC International and its Subsidiaries
(including the Company) for such year, and a consolidated
balance sheet of NPC International and its Subsidiaries
(including the Company) as at the end of such year, setting
forth in each case in comparative form corresponding
consolidated figures from the preceding annual audit, all in
reasonable detail and satisfactory in scope to the Required
Holders and certified to NPC International by independent
public accountants of recognized national standing selected
by NPC International whose certificate shall be in scope and
substance satisfactory to the Required Holders; provided,
however, that, so long as such delivery is made within the
time requirement set forth above in the clause (iii),
delivery pursuant to clause (iv) below of copies of the
Annual Report on Form 10-K of NPC International for such
fiscal year filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of
this clause (iii);
(iv) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and
reports as NPC International shall send to its stockholders
and copies of all registration statements (without exhibits)
and all reports which NPC International files with the
Securities and Exchange Commission (or any governmental body
or agency succeeding to the functions of the Securities and
Exchange Commission);
(v) promptly upon receipt thereof, a copy of each
other report submitted to the boards of directors of NPC
International (or any executive committee thereof) or any
Subsidiary (including the Company) by independent
accountants in connection with any annual, interim or
special audit made by them of the books of NPC International
or any Subsidiary (including the Company);
(vi) promptly after the filing or receiving thereof,
copies of all reports and notices which NPC International or
any Subsidiary (including the Company) files under ERISA
with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or
which NPC International or any Subsidiary (including the
Company) receives from such corporation;
(vii) promptly after receipt of notice thereof by
the Company or NPC International or after the Company or NPC
International obtains knowledge thereof, notice of any
default under any Franchise Agreement and any notice
received by the Company or NPC International pursuant to
Article XXI. C. of the existing Franchise Agreement (or any
similar provision of any Franchise Agreement hereafter
entered into by the Company or NPC International or any
Subsidiary) of any Franchise Agreement in effect on the Date
of Closing;
(viii) promptly from time to time, a written report
of any change in the list of Subsidiaries set forth on Schedule
10S attached hereto; and
(ix) with reasonable promptness, such other information
respecting the condition or operations, financial or
otherwise, of the Company or NPC International or any of
their Subsidiaries as such Significant Holder may reasonably
request.
Together with each delivery of financial statements required
by clauses (i) and (iii) above the Company will deliver to each
Significant Holder an Officer's Certificate demonstrating (with
computations in reasonable detail) compliance by the Company, NPC
International and their Subsidiaries with the provisions of
paragraph 8 and stating that there exists no Event of Default or
Default, or, if any Event of Default or Default exists, specify
ing the nature and period of existence thereof and what action
the Company or NPC International, as applicable, proposes to take
with respect thereto. Together with each delivery of financial
statements required by clause (iii) above, the Company shall
cause to be delivered to each Significant Holder a certificate of
such accountants stating that, in making the audit necessary to
the certification of such consolidated financial statements, they
have obtained no knowledge of any Event of Default or Default,
or, if they have obtained knowledge of any Event of Default or
Default, specifying the nature and period of existence thereof.
Such accountants, however, shall not be liable to anyone by
reason of their failure to obtain knowledge of any Event of
Default or Default which would not be disclosed in the course of
an audit conducted in accordance with generally accepted auditing
standards.
The Company also covenants that forthwith upon the President
or Chief Financial Officer or principal accounting officer of the
Company obtaining knowledge of an Event of Default or Default, it
will deliver to each Significant Holder an Officer's Certificate
specifying the nature and period of existence thereof and what
action the Company or NPC International, as applicable, propose
to take with respect thereto.
7B. Inspection of Property. Inspection of Property.
Inspection of Property. The Company and NPC International will
permit any Person designated by any Significant Holder in
writing, at such Significant Holder's expense, to visit and
inspect any of the properties of the Company, NPC International
and their Subsidiaries, to examine the corporate books and
financial records of the Company, NPC International and their
Subsidiaries and make copies thereof or extracts therefrom and to
discuss the affairs, finances and accounts of any of such
corporations with the principal officers of each such company and
their independent public accountants (and by this provision each
of the Company and NPC International authorizes their accountants
to discuss with such Person the finances and affairs of the
Company, NPC International and their Subsidiaries), all at such
reasonable times with reasonable notice and as often as such
Significant Holder may reasonably request.
7C. Covenant to Secure Notes Equally. Covenant to
Secure Notes Equally. Covenant to Secure Notes Equally. The
Company covenants that if the Company, NPC International or any
Subsidiary shall create or assume any Lien upon any of their
property or assets, whether now owned or hereafter acquired,
other than Liens permitted by the provisions of paragraph 8C(1)
(unless prior written consent to the creation or assumption
thereof shall have been obtained pursuant to paragraph 13C), the
Company will make or cause to be made effective provision whereby
the Notes will be secured by such Lien equally and ratably with
any and all other Debt thereby secured so long as any such other
Debt shall be so secured. In the event the Company shall propose
to secure the Notes pursuant to this paragraph, the mortgage or
other instrument creating such Lien shall be satisfactory in form
and substance (including without limitation the portion thereof
pertaining to the release of the collateral secured thereby and
the application of the proceeds from the sale or other
disposition of such collateral) to the Required Holders.
7D. Subsidiary Guarantors.. Subsidiary Guarantors..
Subsidiary Guarantors. The Company and NPC International shall
immediately cause each Subsidiary hereafter created or acquired
by the Company, NPC International or any Subsidiary to provide to
each Purchaser the following: (a) a Joinder Agreement, (b) all
documents, agreements and other instruments described in
paragraph 4A(iv), (vi), (ix), (xii) and (xiii) with respect to
such Subsidiary; and (c) all information regarding the condition
(financial or otherwise), business and operations of such
Subsidiary as any Purchaser may reasonably request. It is agreed
and understood that the agreement of the Company under this
paragraph 7D to cause any Subsidiary to provide to each Purchaser
a Joinder Agreement is a condition precedent to the execution of
this Agreement and that the entry into this Agreement by
Prudential constitutes good and adequate consideration for the
provision of such Joinder Agreement.
7E. Compliance with Laws, Etc.. Compliance with
Laws, Etc.. Compliance with Laws, Etc. The Company and NPC
International will comply, and cause each of its Subsidiaries to
comply, in all material respects with all applicable laws, rules,
regulations and orders the noncompliance with which could result
in a material adverse effect on the Company, NPC International or
any of their Subsidiaries, such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its
property; provided, that neither the Company, NPC International
nor such Subsidiary shall be required to pay any such taxes,
assessments or governmental charges if (i) the validity,
applicability or amount thereof is being contested in good faith
by appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of the Company, NPC
International or such Subsidiary or any material interference
with the use thereof by the Company, NPC International or such
Subsidiary, and (ii) the Company, NPC International or such
Subsidiary shall set aside on its books, reserves deemed by it to
be adequate with respect thereto.
7F. Maintenance of Insurance.. Maintenance of
Insurance.. Maintenance of Insurance. The Company, NPC
International and each Subsidiary will maintain insurance in such
amounts and against such liabilities and hazards as customarily
is maintained by other companies of similar size operating
similar businesses, and upon the written request of any
Significant Holder, and together with each delivery of financial
statements under clause (iii) of paragraph 7A, the Company will
deliver an Officer's Certificate specifying the details of such
insurance in effect.
7G. Maintenance of Properties, Etc.7G. Maintenance of
Properties, Etc.7G. Maintenance of Properties, Etc. The Company
and NPC International will maintain and preserve, and cause each
Subsidiary to maintain and preserve, to the extent that a failure
to so maintain or preserve would have a material adverse effect
on the Company, NPC International or any Subsidiary's business,
property or assets (i) all of their properties which are used or
useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted and (ii) all of their
rights, title, licenses, trademarks and other permits used or
useful in the conduct of their business; provided, however, that
NPC International may effect the Skipper's Sale.
7H. Corporate Existence7H. Corporate Existence7H.
Corporate Existence. The Company, NPC International and each
Subsidiary shall maintain its corporate, partnership or company
existence, as applicable.
7I. Claims for Labor and Materials. Claims for
Labor and Materials. Claims for Labor and Materials. The
Company and NPC International will promptly pay and discharge,
and will cause each Subsidiary promptly to pay and discharge, all
trade accounts payable in accordance with usual and customary
business terms, and all claims for work, labor or materials,
which if unpaid might become a Lien upon any property of the
Company, NPC International or such Subsidiary; provided that
neither the Company, NPC International nor any Subsidiary shall
be required to pay any such account payable or claim if either
(i)(a) the validity, applicability or amount thereof is being
contested in good faith by appropriate actions or proceedings
which will prevent the forfeiture or sale of any property of the
Company, NPC International or such Subsidiary or any material
interference with the use thereof by the Company, NPC
International or such Subsidiary, and (b) the Company, NPC
International or such Subsidiary shall set aside on its books,
reserves deemed by it to be adequate with respect thereto or (ii)
the failure to pay any such account payable or claim would not
have a material adverse effect on the business, prospects,
profits, properties or condition (financial or otherwise) of the
Company, NPC International and their Subsidiaries taken as a
whole.
8. NEGATIVE COVENANTS. NEGATIVE COVENANTS. NEGATIVE
COVENANTS. During the Issuance Period and thereafter so long as
any Note shall remain unpaid, the Company covenants as follows:
8A. Consolidated Net Worth Requirement..
Consolidated Net Worth Requirement.. Consolidated Net Worth
Requirement. NPC International will not permit Consolidated Net
Worth at any time to be less than the sum of (i) $83,000,000 plus
(ii) an amount equal to 50% of Consolidated Net Earnings (without
reduction for any deficit in Consolidated Net Earnings for any
quarterly fiscal period) for the period from and after December
31, 1996 to and including the date of determination thereof,
computed on a cumulative basis for such period.
8B. Consolidated Fixed Charge Requirement.
Consolidated Fixed Charge Requirement. Consolidated Fixed Charge
Requirement. NPC International will not permit Consolidated Net
Income Available for Fixed Charges for the four fiscal quarters
most recently ended as of the date of determination, at any time
to be less than 200% of Fixed Charges as of the last day of the
fiscal quarter most recently ended as of the date of
determination.
8C. Lien, Debt, and Other Restrictions. Lien,
Debt, and Other Restrictions. Lien, Debt, and Other Restrictions.
The Company and NPC International will not and will not permit
any Subsidiary to:
8C(1) Liens -- Create, assume or suffer to exist any
Lien upon any of its properties or assets, whether now owned
or hereafter acquired (whether or not provision is made for
the equal and ratable securing of the Notes in accordance
with the provisions of paragraph 7C), except
(i) Liens for taxes or governmental charges and
liens securing claims or demands of mechanics and
materialmen provided that the payment is not at the
time required by paragraph 7E or 7I;
(ii) other Liens incidental to the conduct of its
business or the ownership of its property and assets
which are not incurred in connection with the borrowing
of money or the obtaining of advances or credit, and
which do not in the aggregate materially detract from
the value of its property or assets or materially
impair the use thereof in the operation of its
business;
(iii) survey exceptions which, when taken as a
whole, would not have a material adverse effect on the
Company, NPC International and the Subsidiaries, taken
as a whole;
(iv) Liens on property or assets of a Subsidiary
to secure obligations of such Subsidiary to the
Company, NPC International or another Subsidiary;
(v) Liens existing on property acquired by the
Company, NPC International or any Subsidiary at the
time such property is acquired or Liens existing on
property of a Person immediately prior to such Person
being consolidated with or merged into the Company, NPC
International or a Subsidiary or such Person becoming a
Subsidiary provided that (x) no such Lien shall have
been created or assumed in contemplation of such
acquisition, consolidation or merger or such Person's
becoming a Subsidiary, (y) each such Lien shall at all
times be confined solely to the property so acquired,
and (z) any Debt secured by such Liens shall be within
the applicable limitations of paragraph 8C(2)(a); and
(vi) other Liens on the property of the Company,
NPC International and all Subsidiaries, provided that
(a) the aggregate amount of (I) Debt secured by such
Liens plus (II) Debt of Subsidiaries (collectively,
"Priority Debt") does not exceed at any time an amount
equal to 20% of Consolidated Net Worth and (b) all such
Debt shall be within the applicable limitations of
paragraph 8C(2)(a).
8C(2) Debt -- (a) Create, incur, assume or in any
manner be or become liable in respect of any Debt, except
(i) Funded Debt of NPC Management represented by
the Notes;
(ii) Funded Debt of each Guarantor represented by
the Guaranty Agreement;
(iii) Debt existing on the date hereof and
described on Schedule 8(C)(2) attached hereto,
including, in the case of any Guarantor, any Permitted
Guaranty Debt in respect of such Debt;
(iv) Debt of the Company to any Guarantor and Debt
of any Guarantor to the Company or any other Guarantor;
provided that, such Debt is incurred when no Event of
Default or Default exists or would result therefrom; and
(v) additional Debt of the Company, NPC
International and their Subsidiaries; provided that (x)
the aggregate amount of all Debt of the Company, NPC
International and their Subsidiaries (determined on a
consolidated basis) shall not exceed at any time an
amount equal to (1) prior to March 31, 1998 three and one-
fourth (3.25) times Pro Forma EBITDA, and (2) thereafter, three
(3.0) times Pro Forma EBITDA, in each case for the four
fiscal quarters immediately preceding the date of
determination, and (y) in the case of Priority Debt, such Debt is
within the applicable limitations of paragraphs 8C(1) and 8C(4).
(b) Any entity which becomes a Subsidiary after the date
hereof shall for all purposes of this Agreement be deemed to have
created, assumed or incurred at the time it becomes a Subsidiary
all Debt of such entity existing immediately after it becomes a
Subsidiary.
8C(3) Loans, Advances, Investments and Contingent
Liabilities -- Make or permit to remain outstanding any loan or
advance to, or guarantee, endorse or otherwise be or become
contingently liable, directly or indirectly, in connection with
the obligations, stock or dividends of, or own, purchase or
acquire any stock, obligations or securities of, or any other
interest in, or make any capital contribution to, any Person,
except that the Company, NPC International or any Subsidiary may
(i) make or permit to remain outstanding loans or
advances to any Subsidiary as permitted by paragraph
8C(2)(iv) and enter into and perform NPC
International's obligations under the Indemnification
Agreements,
(ii) own, purchase or acquire stock, obligations
or securities of a Subsidiary or of a corporation which
immediately after such purchase or acquisition will be
a Subsidiary,
(iii) acquire and own stock, obligations or
securities received in settlement of debts (created in
the ordinary course of business) owing to the Company,
NPC International or any Subsidiary,
(iv) own, purchase or acquire prime commercial
paper and certificates of deposit of United States
commercial banks (having capital surplus in excess of
$250,000,000), in each case due within one year from
the date of purchase and payable in the United States
in United States dollars, and obligations of the United
States Government or any agency thereof, and
obligations guaranteed by the United States Government,
and repurchase agreements of such banks for terms of
less than one year in respect of the foregoing
certificates and obligations,
(v) own, purchase or acquire securities issued by
state and local governments (or subdivisions thereof)
maturing in twelve months or less from the date of
acquisition by the Company, NPC International or any
Subsidiary which securities at the time of acquisition
thereof by the Company, NPC International or such
Subsidiary are rated AA or better by Standard & Poor's
Corporation or AA or better by ▇▇▇▇▇'▇ Investors
Service, Inc.,
(vi) make or permit to remain outstanding travel
and other like advances to officers and employees in
the ordinary course of business,
(vii) make or permit to remain outstanding loans
to officers and employees of the Company and NPC
International pursuant to the Executive Loan Program in
an aggregate amount not to exceed $1,500,000
outstanding at any time that are approved by the Audit
Committee of the Board of Directors of NPC
International,
(viii) promissory notes and other receivables
arising from the sale of goods and services or other
assets; provided that the aggregate outstanding amounts
of such notes and receivables shall not at any time
exceed $7,500,000, and
(ix) make or permit to remain outstanding loans
or advances to, or guarantee, endorse or otherwise be
or become contingently liable in connection with the
obligations, stock or dividends of, or own, purchase or
acquire stock, obligations or securities of, any other
Person, provided that the aggregate principal amount of
such loans and advances, plus the aggregate amount of
such contingent liabilities, at any time outstanding
for the Company, NPC International and all Subsidiaries
shall not exceed an amount equal to 10% of Consolidated
Net Worth.
8C(4) Subsidiary Debt. The Company and NPC
International will not permit Subsidiaries to create, incur
or assume or in any manner be or become liable in any
respect of any Debt (other than Permitted Guaranty Debt), if
the aggregate amount of Priority Debt of the Company, NPC
International and Subsidiaries would exceed an amount equal
to twenty percent (20%) of Consolidated Net Worth.
8C(5) Sale of Stock and Debt of Subsidiaries --
Sell or otherwise dispose of, or part with control of, any
shares of stock or Debt of any Subsidiary, except to the
Company, NPC International or another Subsidiary, and except
that all shares of stock and Debt of any Subsidiary at the
time owned by or owed to the Company, NPC International and
all Subsidiaries may be sold as an entirety for a cash
consideration which represents the fair value (as determined
in good faith by the Board of Directors of NPC
International) at the time of sale of the shares of stock
and Debt so sold, provided that the assets of such
Subsidiary could be sold within the limitations of paragraph
8C(6) and that the earnings of such Subsidiary shall not
have constituted more than 5% of Consolidated Net Earnings
for any of the three fiscal years then most recently ended,
and provided further that, at the time of such sale, such
Subsidiary shall not own, directly or indirectly, any shares
of stock or Debt of any other Subsidiary (unless all of the
shares of stock and Debt of such other Subsidiary owned,
directly or indirectly, by the Companies and all
Subsidiaries are simultaneously being sold as permitted by
this paragraph 8C(5)) or any Debt of the Company or NPC
International; provided, however, that NPC International may
effect the Skipper's Sale.
8C(6) Merger and Sale of Assets -- Merge or
consolidate with or into any other Person or during any 12
month period, sell, lease, transfer or otherwise dispose of
any assets which in the aggregate have a book value in
excess of 5% of the consolidated assets of the Company, NPC
International and all Subsidiaries to any Person (determined
as of the end of the fiscal year immediately preceding the
date of such sale or disposition), except that
(i) any Subsidiary (other than the Company) may
merge into NPC International or into any one or more
other Subsidiaries;
(ii) any Subsidiary (other than the Company) may
be consolidated with any other Subsidiary;
(iii) any Guarantor may sell, lease, transfer
or otherwise dispose of any of its assets to the
Company or any other Guarantor, and the Company may
sell, lease, transfer or otherwise dispose of any of
its assets (other than any Franchise Agreement or
interest therein) to any Guarantor, and
(iv) any Subsidiary (other than the Company) may
sell, or otherwise dispose of all or substantially all
of its assets subject to the conditions specified in
paragraph 8C(5) with respect to a sale of the stock of
such Subsidiary.
provided, in each of the cases described in the preceding
clauses, that immediately thereafter and after giving effect
thereto, no Event of Default or Default shall have occurred and
be continuing. 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 paragraph 8(C)(6)(iii).
8C(7) Sale or Discount of Receivables -- Sell with
recourse, or discount or otherwise sell for less than face
value thereof, any of their notes or accounts receivable.
8C(8) Transactions with Affiliates -- Directly or
indirectly, purchase, acquire or lease any property from, or
sell, transfer or lease property (other than shares of stock
of NPC International) to, or otherwise deal with, in the
ordinary course of business or otherwise (i) any Substantial
Stockholder, or (ii) any corporation (except a Subsidiary)
in which a Substantial Stockholder, the Company or NPC
International (either directly or through Subsidiaries) own
5% or more of the outstanding voting stock of such
corporation except that (a) any Substantial Stockholder may
be a director, officer or employee of the Company, NPC
International or any Subsidiary and may be paid reasonable
compensation in connection therewith and (b) such acts and
transactions prohibited by this paragraph 8C(8) may be
performed or engaged in if upon terms not less favorable to
the Company, NPC International or any Subsidiary than if no
relationship described in clause (i) and (ii) above existed.
The provisions of this paragraph 8C(8) shall not apply to
transactions with stockholders initiated prior to September
26, 1989 and which have been reported to the Securities and
Exchange Commission or loans to stockholders permitted by
paragraph 8C(3)(vi).
8C(9) Intangible Assets -- (a) The Company and
NPC International will not and will not permit any
Subsidiary to enter into, assume or otherwise be bound or
obligated under any agreement creating or evidencing Debt or
any agreement executed and delivered in connection with any
Debt containing one or more Intangible Asset Covenants
unless prior written consent to such agreement shall have
been obtained pursuant to paragraph 13C; provided, however,
in the event the Company, NPC International or any
Subsidiary shall enter into, assume or otherwise become
bound by or obligated under any such agreement without the
prior written consent of the Required Holders, the terms of
this Agreement shall without any further action on the part
of the Company or any of the holders of the Notes, be deemed
to be amended automatically to include each Intangible Asset
Covenant contained in such agreement. The Company and NPC
International further covenant to promptly execute and
deliver at its expense an amendment to this Agreement in
form and substance satisfactory to the Required Holders
evidencing the amendment of this Agreement to include such
Intangible Asset Covenants provided that the execution and
delivery of such amendment shall not be a precondition to
the effectiveness of such amendment as provided for in this
paragraph 8C(9), but shall merely be for the convenience of
the parities hereto.
(b) For the purposes of this Agreement, the term
"Intangible Asset Covenant" shall mean (i)(A) any
affirmative or negative covenant or similar restriction
applicable to the Company, NPC International or any
Subsidiary (regardless of whether such provision is labeled
or otherwise characterized as a covenant) or (B) any
provision which permits the holder of Debt of the Company,
NPC International or any Subsidiary to accelerate (with the
passage of time or giving of notice or both) the maturity
thereof or otherwise require the Company, NPC International
or any Subsidiary to purchase such Debt prior to its stated
maturity and (ii) such provision provides for a financial
covenant or default the calculation of which involves as a
specific component thereof the level of intangible assets of
the Company, NPC International or any Subsidiary.
8D. Interest and Rents Coverage.. Interest and Rents
Coverage.. Interest and Rents Coverage. The Company
covenants that, on the last day of each fiscal quarter, the ratio
of (a) consolidated Pro Forma EBITDA plus the consolidated
operating lease rental expense of NPC International and its
Subsidiaries to (b) Fixed Charges will be not less than 1.5 to
1.0, for the period consisting of the four (4) consecutive fiscal
quarters ending on the date of such determination. For purposes
of determining whether the entering into of any lease results in
a breach of this paragraph 8D, the Company shall make the
calculation required under the paragraph 8D, as of the date such
lease is entered into on the assumption that the rental expense
that is expected to be incurred during the twelve-month period
following the entering into of the lease was incurred during the
twelve-month period ending on the date of such calculation.
9. EVENTS OF DEFAULT. EVENTS OF DEFAULT. EVENTS OF
DEFAULT.
9A. Acceleration. Acceleration. Acceleration. If
any of the following events shall occur and be continuing for any
reason whatsoever (and whether such occurrence shall be voluntary
or involuntary or come about or be effected by operation of law
or otherwise):
(i) the Company defaults in the payment of any
principal of, or Yield-Maintenance Amount payable with
respect to, any Note when the same shall become due, either
by the terms thereof or otherwise as herein provided; or
(ii) the Company defaults in the payment of any
interest on any Note for more than five (5) Business Days
after the date due; or
(iii) the Company or any Guarantor defaults in any
payment of principal of or interest on any other obligation
for money borrowed (or any Capitalized Lease Obligation, any
obligation under a conditional sale or other title retention
agreement, any obligation issued or assumed as full or
partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of
credit) beyond any period of grace provided with respect
thereto, or the Company or any Guarantor fails to perform or
observe any other agreement, term or condition contained in
any agreement under which any such obligation is created (or
if any other event of default thereunder or under any such
agreement shall occur and be continuing) and the effect of
such failure or other event of default is to cause, or to
permit the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) to cause, such
obligation to become due (or to be repurchased by the
Company or any Guarantor) prior to any stated maturity or
the Company or any Guarantor fails to pay any guaranty in
accordance with its terms, provided that the aggregate
amount of all obligations as to which such a payment default
shall occur and be continuing or such a failure or other
event causing or permitting acceleration (or resale to the
Company or any Guarantor) shall occur and be continuing
exceeds $2,500,000; or
(iv) any representation or warranty made by the Company
herein or by the Company or any of its officers in any
writing furnished in connection with or pursuant to this
Agreement shall be false in any material respect on the date
as of which made; or
(v) the Company or NPC International fails to perform
or observe any term, covenant or agreement contained in
paragraphs 6C, 6D or 8 (other than paragraph 8C(8)) and such
failure shall not be remedied within 5 Business Days after
any officer of the Company or NPC International obtains
actual knowledge thereof; or
(vi) the Company or NPC International fails to perform
or observe any other agreement, covenant, term or condition
contained herein including paragraph 8C(8) and such failure
shall not be remedied within 30 days after any officer of
the Company or NPC International obtains actual knowledge
thereof; or
(vii) 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 NPC International from operating
such franchise under the name "Pizza Hut", and such loss
materially adversely affects the business operations or
profitability of the Company or NPC International; or
(viii) the Company or any Guarantor makes an
assignment for the benefit of creditors or is generally not
paying its debts as such debts become due; or
(ix) any decree or order for relief in respect of the
Company or any Guarantor is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency,
readjustment of debt (with respect to the bankruptcy or
insolvency of the Company or any Guarantor), dissolution or
liquidation or similar law, whether now or hereafter in
effect (herein called the "Bankruptcy Law"), of any jurisdic
tion; or
(x) the Company or any Guarantor petitions or applies
to any tribunal for, or consents to, the appointment of, or
taking possession by, a trustee, receiver, custodian,
liquidator or similar official of the Company or any
Guarantor, or of any substantial part of the assets of the
Company or any Guarantor, or commences a voluntary case
under the Bankruptcy Law of the United States or any
proceedings (other than proceedings for the voluntary
liquidation and dissolution of a Guarantor) relating to the
Company or any Guarantor under the Bankruptcy Law of any
other jurisdiction; or
(xi) any such petition or application is filed, or any
such proceedings are commenced, against the Company or any
Guarantor and the Company or such Guarantor by any act
indicates its approval thereof, consent thereto or
acquiescence therein, or an order, judgment or decree is
entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in
any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than 30 days; or
(xii) any order, judgment or decree is entered in
any proceedings against the Company or NPC International
decreeing the dissolution of the Company or NPC
International and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(xiii) any order, judgment or decree is entered in
any proceedings against the Company or any Guarantor
decreeing a split-up of the Company or such Guarantor which
requires the divestiture of assets representing a
substantial part, or the divestiture of the stock of a
Guarantor whose assets represent a substantial part, of the
consolidated assets of NPC International and its
Subsidiaries (determined in accordance with generally
accepted accounting principles) or which requires the
divestiture of assets, or stock of a Guarantor, which shall
have contributed a substantial part of the Consolidated Net
Earnings for any of the three fiscal years then most
recently ended, and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(xiv) any judgment or order, or series of judgments
or orders, for the payment of money in an amount in excess
of $2,500,000 (exclusive of any amount covered by insurance
and with respect to which the insurer has assumed
responsibility in writing) is rendered against the Company
or any Guarantor and either (i) enforcement proceedings have
been commenced by any creditor upon such judgment or order
or (ii) within 30 days after entry thereof, such judgment is
not discharged or execution thereof stayed pending appeal,
or within 30 days after the expiration of any such stay,
such judgment is not discharged; or
(xv) any Termination Event with respect to a Plan shall
have occurred, and, within 30 days after the occurrence
thereof, (i) such Termination Event (if correctable) shall
not have been corrected and (ii) the then present value of
such Plan's vested benefits exceeds the then current value
of assets accumulated in such Plan by more than the amount
of $2,500,000 (or in the case of a Termination Event
involving the withdrawal of a "substantial employer" (as
defined in Section 4001(a)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed
such amount); or
(xvi) the Company, NPC International or any of
their ERISA Affiliates as employer under a Multiemployer
Plan shall have made a complete or partial withdrawal from
such Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall have notified such withdrawing
employer that such employer has incurred a withdrawal
liability in an annual amount exceeding $2,500,000;
then (a) if such event is an Event of Default specified in clause
(i) or (ii) of this paragraph 9A, any holder of any Note subject
to such a payment default may at its option during the
continuance of such Event of Default, by notice in writing to the
Company, declare all of such Notes held by such holder to be, and
all of such Notes held by such holder shall thereupon be and
become, immediately due and payable together with interest
accrued thereon, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the Company, (b)
if such event is an Event of Default specified in clause (viii),
(ix), (x), (xi) or (xii) of this paragraph 9A with respect to the
Company or NPC International, all of the Notes at the time
outstanding shall automatically become immediately due and
payable at par together with interest accrued thereon, without
presentment, demand, protest or notice of any kind, all of which
are hereby waived by the Company, and (c) if such event is any
other Event of Default, the Required Holder(s) of the Notes of
any Series may at its or their option during the continuance of
such Event of Default, by notice in writing to the Company,
declare all of the Notes of such Series to be, and all of the
Notes of such Series shall thereupon be and become, immediately
due and payable together with interest accrued thereon and
together with the Yield-Maintenance Amount, if any, with respect
to each Note of such Series, without presentment, demand, protest
or notice of any kind, all of which are hereby waived by the
Company, provided that the Yield-Maintenance Amount, if any, with
respect to each Note shall be due and payable upon any
declaration pursuant to this paragraph 9A only if (I) the event
whose occurrence permits such declaration is an Event of Default
specified in any of clauses (i) to (vi), inclusive, of this
paragraph 9A, (II) the Required Holders of the Notes of any
Series which shall have been accelerated shall have given to the
Company, at least 10 Business Days before such declaration,
written notice stating its or their intention to declare the
Notes held by such Required Holders (or all of the Notes of such
Series) to be immediately due and payable and identifying one or
more such Events of Default whose occurrence on or before the
date of such notice permits such declaration, and (III) one or
more of the Events of Default so identified shall be continuing
at the time of such declaration.
9B. Rescission of Acceleration. Rescission of
Acceleration. Rescission of Acceleration. At any time after any
or all of the Notes shall have been declared immediately due and
payable pursuant to paragraph 9A, the Required Holder(s) may, by
notice in writing to the Company, rescind and annul such
declaration and its consequences if (i) the Company shall have
paid all overdue interest on the Notes, the principal of and
Yield-Maintenance Amount, if any, payable with respect to any
Notes which have become due otherwise than by reason of such
declaration, and interest on such overdue interest and overdue
principal and Yield-Maintenance Amount at the rate specified in
the Notes, (ii) the Company shall not have paid any amounts which
have become due solely by reason of such declaration, (iii) all
Events of Default and Defaults, other than non-payment of amounts
which have become due solely by reason of such declaration, shall
have been cured or waived pursuant to paragraph 13C, and (iv) no
judgment or decree shall have been entered for the payment of any
amounts due pursuant to the Notes or this Agreement. No such
rescission or annulment shall extend to or affect any subsequent
Event of Default or Default or impair any right arising
therefrom.
9C. Notice of Acceleration or Rescission. Notice of
Acceleration or Rescission. Notice of Acceleration or
Rescission. Whenever any Note shall be declared immediately due
and payable pursuant to paragraph 9A or any such declaration
shall be rescinded and annulled pursuant to paragraph 9B, the
Company shall forthwith give written notice thereof to the holder
of each Note at the time outstanding.
9D. Other Remedies.. Other Remedies.. Other
Remedies. If any Event of Default or Default shall occur and be
continuing, the holder of any Note may proceed to protect and
enforce its rights under this Agreement and such Note by
exercising such remedies as are available to such holder in
respect thereof under applicable law, either by suit in equity or
by action at law, or both, whether for specific performance of
any covenant or other agreement contained in this Agreement or in
aid of the exercise of any power granted in this Agreement. No
remedy conferred in this Agreement upon the holder of any Note is
intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every
other remedy conferred herein or now or hereafter existing at law
or in equity or by statute or otherwise.
10. REPRESENTATIONS, COVENANTS AND WARRANTIES..
REPRESENTATIONS, COVENANTS AND WARRANTIES.. REPRESENTATIONS,
COVENANTS AND WARRANTIES. The Company represents, covenants and
warrants:
10A. Organization; Qualification; Corporate Authority..
Organization; Qualification; Corporate Authority..
Organization; Qualification; Corporate Authority. The Company is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware; and each
Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is
incorporated or organized. The Company has and each Guarantor
has the corporate, company or partnership power, as applicable,
to own its respective property and to carry on its respective
business as now being conducted, and the Company and each
Guarantor is duly qualified as a foreign corporation, company or
partnership, as applicable, to do business and is in good
standing in every jurisdiction in which the nature of the
business conducted by it makes such qualification necessary. The
execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers
and have been duly authorized by all necessary corporate action.
10B. Financial Statements.. Financial Statements..
Financial Statements. The Company has furnished Prudential with
the following financial statements, identified by a principal
financial officer of NPC International: (i) a consolidated
balance sheet of NPC International and its Subsidiaries
(including the Company) as at the last day of each of the three
fiscal years of NPC International most recently completed prior
to the date as of which this representation is made or repeated
to such Purchaser (other than fiscal years completed within 90
days prior to such date for which audited financial statements
have not been released) and consolidated statements of income,
stockholders' equity and cash flows of NPC International and its
Subsidiaries (including the Company) for each such year, all
reported on by Ernst & Young; and (ii) a consolidated balance
sheet of NPC International and its Subsidiaries (including the
Company) as at the end of the quarterly period (if any) most
recently completed prior to such date and after the end of such
fiscal year (other than quarterly periods completed within 60
days prior to such date for which financial statements have not
been released) and the comparable quarterly period in the
preceding fiscal year and consolidated statements of income,
stockholders' equity and cash flows for the periods from the
beginning of the fiscal years in which such quarterly periods are
included to the end of such quarterly periods, prepared by NPC
International. Such financial statements (including any related
schedules and/or notes) are true and correct in all material
respects (subject, as to interim statements, to changes resulting
from audits and year-end adjustments), have been prepared in
accordance with generally accepted accounting principles
consistently followed throughout the periods involved and show
all liabilities, direct and contingent, of NPC International and
its Subsidiaries (including the Company) required to be shown in
accordance with such principles. The balance sheets fairly
present the condition of NPC International and its Subsidiaries
(including the Company) as at the dates thereof, and the
statements of income, stockholders' equity and cash flows fairly
present the results of the operations of NPC International and
its Subsidiaries (including the Company) and their cash flows for
the periods indicated. There has been no material adverse change
in the business, property or assets, condition (financial or
otherwise), or operations of the Company, NPC International and
their Subsidiaries taken as a whole since the end of the most
recent fiscal year for which such audited financial statements
have been furnished.
10C. Conflicting Agreements and Other Matters..
Conflicting Agreements and Other Matters.. Conflicting
Agreements and Other Matters. Neither the Company nor any
Guarantor is a party to any contract or agreement or subject to
any charter or other corporate restriction which materially and
adversely affects its business, property or assets, or financial
condition. Neither the execution nor delivery of this Agreement
or the Notes, nor the offering, issuance and sale of the Notes,
nor fulfillment of nor compliance with the terms and provisions
hereof and of the Notes will conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the
Company or any Guarantor pursuant to, the charter, by-laws or
organizational documents of the Company or any Guarantor or any
award of any arbitrator or any agreement (including any agreement
with stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which the Company or any Guarantor is
subject. Neither the Company nor any Guarantor is a party to, or
otherwise subject to any provision contained in, any instrument
evidencing indebtedness of the Company or such Guarantor, any
agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise
imposes restrictions on the incurring of, Debt of the Company of
the type to be evidenced by the Notes except as set forth in the
agreements listed in Schedule 10C attached hereto.
10D. Governmental Consent.. Governmental Consent..
Governmental Consent. Neither the nature of the Company or of
any Guarantor, nor any of their respective businesses or
properties, nor any relationship between the Company or any
Guarantor and any other Person, nor any circumstance in
connection with the offering, issuance, sale or delivery of the
Notes is such as to require any authorization, consent, approval,
exemption or other action by or notice to or filing with any
court or administrative or governmental or regulatory body (other
than routine filings after the Date of Closing with the
Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of
this Agreement, the offering, issuance, sale or delivery of the
Notes or fulfillment of or compliance with the terms and
provisions hereof or of the Notes.
10E. Enforceability.. Enforceability..
Enforceability. This Agreement is, and the Notes when delivered
hereunder will be, legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms.
10F. Actions Pending. Actions Pending. Actions
Pending. There is no action, suit, investigation or proceeding
pending or, to the knowledge of the Company, threatened against
the Company or any Guarantor, or any properties or rights of the
Company or any Guarantor, by or before any court, arbitrator or
administrative or governmental body which might result in any
material adverse change in the business, condition or operations
of the Company and the Guarantors taken as a whole. There is no
action, suit, investigation or proceeding pending or threatened
against the Company or any Guarantor which purports to affect the
validity or enforceability of this Agreement or any Note.
10G. Outstanding Debt.. Outstanding Debt..
Outstanding Debt. Neither the Company nor any Guarantors has
outstanding any Debt except as permitted by paragraphs 8C(2) and
8C(4). There exists no default under the provisions of any
instrument evidencing such Debt or of any agreement relating
thereto.
10H. Title to Properties. Title to Properties.
Title to Properties. The Company has and each Guarantor has good
and marketable title to substantially all of its respective real
properties (other than properties which it leases) and good title
to substantially all of their other respective properties and
assets, including the properties and assets reflected in the most
recent audited balance sheet referred to in paragraph 10B (other
than properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted
by paragraph 8C(1). The Company and each Guarantor enjoys
peaceful and undisturbed possession under all leases necessary in
any material respect for the operation of their respective
properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the
operation of such properties and assets. All leases necessary in
any material respect for the conduct of the respective businesses
of the Company and the Guarantors are valid and subsisting and
are in full force and effect.
10I. Taxes.. Taxes.. Taxes. The Company has and
each Guarantor has filed all Federal, State and other income tax
returns which, to the best knowledge of the officers of the
Company, are required to be filed, and each has paid all taxes as
shown on such returns and on all assessments received by it to
the extent that such taxes have become due, except such taxes as
are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with
generally accepted accounting principles. Federal income tax
returns of NPC International have been examined and reported on
by the taxing authorities or closed by applicable statutes and
satisfied for all fiscal years prior to and including the fiscal
year ended on March 30, 1993.
10J. Offering of Notes. Offering of Notes. Offering
of Notes. Neither the Company, NPC International nor any agent
acting on their behalf has, directly or indirectly, offered the
Notes or any similar security of the Company or NPC International
or the Guaranty Agreement or any similar security of any
Guarantor for sale to, or solicited any offers to buy the Notes
or any similar security of the Company or NPC International or
any Guarantor or any similar security of a Guarantor from, or
otherwise approached or negotiated with respect thereto with, any
Person other than institutional investors, and neither the
Company, NPC International nor any agent acting on their behalf
has taken or will take any action which would subject the
issuance or sale of the Notes to the provisions of section 5 of
the Securities Act or to the provisions of any securities or Blue
Sky law of any applicable jurisdiction.
10K. Use of Proceeds.. Use of Proceeds.. Use of
Proceeds. Neither the Company nor any Guarantor owns or has any
present intention of acquiring any "margin stock" as defined in
Regulation G (12 CFR Part 207) of the Board of Governors of the
Federal Reserve System (herein called "margin stock"). None of
the proceeds of the sale of any Notes will be used, directly or
indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any margin stock or for the
purpose of maintaining, reducing or retiring any indebtedness
which was originally incurred to purchase or carry any stock that
is currently a margin stock or for any other purpose which might
constitute the purchase of such Notes a "purpose credit" within
the meaning of such Regulation G, unless the Company shall have
delivered to the Purchaser which is purchasing such Notes, on the
Closing Day for such Notes, an opinion of counsel satisfactory to
such Purchaser stating that the purchase of such Notes does not
constitute a violation of such Regulation G. Neither the
Company, any Guarantor nor any agent acting on their behalf has
taken or will take any action which might cause this Agreement or
the Notes to violate Regulation G, Regulation T or any other
regulation of the Board of Governors of the Federal Reserve
System or to violate the Exchange Act, in each case as in effect
now or as the same may hereafter be in effect.
10L. ERISA. ERISA. ERISA. No accumulated funding
deficiency (as defined in section 302 of ERISA and section 412 of
the Code), whether or not waived, exists with respect to any Plan
(other than a Multiemployer Plan). No liability to the Pension
Benefit Guaranty Corporation has been, or is expected by the
Company, any Guarantor or any Affiliate to be, incurred with
respect to any Plan (other than a Multiemployer Plan) by the
Company or any Guarantor which is or would be materially adverse
to the Company and the Guarantors taken as a whole. Neither the
Company nor any Guarantor has incurred or presently expects to
incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan which is or would be materially
adverse to the Company and the Guarantors taken as a whole. The
execution and delivery of this Agreement and the issuance and
sale of the Notes will be exempt from or will not involve any
transaction which is subject to the prohibitions of section 406
of ERISA and will not involve any transaction in connection with
which a penalty could be imposed under section 502(i) of ERISA or
a tax could be imposed pursuant to section 4975 of the Code. The
representation by the Company in the next preceding sentence is
made in reliance upon and subject to the accuracy of the
representation of each Purchaser in paragraph 11B as to the
source of funds to be used by it to purchase any Notes.
10M. Disclosure.. Disclosure.. Disclosure. Neither
this Agreement nor any other document, certificate or statement
furnished to any Purchaser by or on behalf of the Company in
connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make
the statements contained herein and therein not misleading.
There is no fact peculiar to the Company or any Guarantor which
materially adversely affects or in the future may (so far as the
Company can now foresee) materially adversely affect the
business, property or assets, or financial condition of the
Company or any Guarantor and which has not been set forth in this
Agreement or in the other documents, certificates and statements
furnished to any Purchaser by or on behalf of the Company prior
to the date hereof in connection with the transactions
contemplated hereby.
10N. Investment Company Act.. Investment Company Act..
Investment Company Act. Neither the Company nor NPC
International is an "investment company" or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
10O. Public Utility Holding Company Act.. Public
Utility Holding Company Act.. Public Utility Holding Company Act.
Neither the Company nor NPC International is a "holding company"
or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", or a "public utility" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
10P. Environmental Compliance10P. Environmental
Compliance10P. Environmental Compliance. The Company and the
Guarantors and all of their respective properties and facilities
have complied at all times and in all respects with all federal,
state, local and regional statutes, laws, ordinances and judicial
or administrative orders, judgments, rulings and regulations
relating to protection of the environment except, in any such
case, where failure to comply would not result in a material
adverse effect on the business, condition (financial or
otherwise) or operations of the Company and the Guarantors taken
as a whole.
10Q. Funded Debt Agreements.. Funded Debt Agreements..
Funded Debt Agreements. The form of agreements evidencing the
Bank Facilities (delivered to Prudential on the date hereof) are
true, correct and complete in all respects and there exists no
amendments, waivers or other modifications to such agreements
except as previously provided to Prudential.
10R. Hostile Tender Offers10R. Hostile Tender
Offers10R. Hostile Tender Offers. None of the proceeds of
the sale of any Notes will be used to finance a Hostile Tender
Offer.
10S. Subsidiaries. . Subsidiaries. .
Subsidiaries. NPC International has no Subsidiaries except as
listed on Schedule 10S (as updated from time to time pursuant to
paragraph 7A(viii)).
11. REPRESENTATIONS OF THE PURCHASER.. REPRESENTATIONS
OF THE PURCHASER.. REPRESENTATIONS OF THE PURCHASER.
Each Purchaser represents as follows:
11A. Nature of Purchase. Nature of Purchase. Nature of
Purchase. Such Purchaser is not acquiring the Notes purchased by
it hereunder with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act,
provided that the disposition of such Purchaser's property shall
at all times be and remain within its control.
11B. Source of Funds. Source of Funds. Source of
Funds. All of the funds to be used by such Purchaser to purchase
the Notes are assets of an insurance company general account and,
if any assets in the general account are, or may be, assets of
any "employee benefit plan" within the meaning of Section 3(3) of
ERISA, such Purchaser meets the conditions for application of the
general exemption in Section I of the Proposed Class Exemption
for Certain Transactions Involving Insurance Company General
Accounts (59 Fed. Reg. 43134 (1994)).
12. DEFINITIONS AND ACCOUNTING TERMS.. DEFINITIONS AND
ACCOUNTING TERMS.. DEFINITIONS AND ACCOUNTING TERMS.
12A. Certain Defined Terms.. Certain Defined Terms..
Certain Defined Terms. As used in this Agreement the following
terms shall have the meanings specified with respect thereto
below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Acceptance" shall have the meaning specified in
paragraph 3F.
"Acceptance Day" shall have the meaning specified in
paragraph 3F.
"Acceptance Window" shall have the meaning specified in
paragraph 3F.
"Accepted Shelf Note" shall have the meaning specified
in paragraph 3F.
"Acquisition Agreement" shall mean the Acquisition
Agreement dated as of March 25, 1996, by and among Seattle Crab
Co., NPC International and Skipper's Inc.
"Affiliate" shall mean any Person directly or
indirectly controlling, controlled by, or under direct or
indirect common control with, the Company or NPC International,
except a Subsidiary. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and poli
cies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Authorized Officer" shall mean (i) in the case of the
Company, its chief executive officer, its chief financial
officer, any vice president of the Company designated as an
"Authorized Officer" of the Company in the Information Schedule
attached hereto or any vice president of the Company designated
as an "Authorized Officer" of the Company for the purpose of this
Agreement in an Officer's Certificate executed by the Company's
chief executive officer or chief financial officer and delivered
to Prudential, and (ii) in the case of Prudential, any officer of
Prudential designated as its "Authorized Officer" in the
Information Schedule or any officer of Prudential designated as
its "Authorized Officer" for the purpose of this Agreement in a
certificate executed by one of its Authorized Officers. Any
action taken under this Agreement on behalf of the Company by any
individual who on or after the date of this Agreement shall have
been an Authorized Officer of the Company and whom Prudential in
good faith believes to be an Authorized Officer of the Company at
the time of such action shall be binding on the Company even
though such individual shall have ceased to be an Authorized
Officer of the Company, and any action taken under this Agreement
on behalf of Prudential by any individual who on or after the
date of this Agreement shall have been an Authorized Officer of
Prudential and whom the Company in good faith believes to be an
Authorized Officer of Prudential at the time of such action shall
be binding on Prudential even though such individual shall have
ceased to be an Authorized Officer of Prudential.
"Available Facility Amount" shall have the meaning
specified in paragraph 3A.
"Bank Facility" shall mean, together (i) the
$185,000,000 Amended and Restated Revolving Credit Agreement,
dated the date hereof, among the Company, Texas Commerce Bank
National Association, individually and as agent for the
institutions party thereto, as amended or otherwise modified from
time to time, and (ii) the $15,000,000 Amended and Restated
Revolving Credit Agreement, dated the date hereof between the
Company and Texas Commerce Bank National Association, as amended
or otherwise modified from time to time.
"Bankruptcy Law" shall have the meaning specified in
clause (ix) of paragraph 9A.
"Business Day" shall mean any day other than (i) a
Saturday or a Sunday, (ii) a day on which commercial banks in New
York City are required or authorized to be closed and (iii) for
purposes of paragraph 3C hereof only, a day on which The
Prudential Insurance Company of America is not open for business.
"Called Principal" shall mean, with respect to any
Note, the principal of such Note that is to be prepaid pursuant
to paragraph 6B (any partial prepayment being applied in
satisfaction of required payments of principal in inverse order
of their scheduled due dates) or is declared to be immediately
due and payable pursuant to paragraph 9A, as the context
requires.
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles,
is or will be required to be capitalized on the books of the
Company or any Guarantor, taken at the amount thereof accounted
for as indebtedness (net of interest expense) in accordance with
such principles.
"Closing Day" for any Accepted Shelf Note shall mean
the Business Day specified for the closing of the purchase and
sale of such Note in the Request for Purchase of such Note,
provided that (i) if the Acceptance Day for such Accepted Shelf
Note is less than five Business Days after the Company shall have
made such Request for Purchase and the Company and the Purchaser
which is obligated to purchase such Note agree on an earlier
Business Day for such closing, the "Closing Day" for such
Accepted Shelf Note shall be such earlier Business Day, and (ii)
if the closing of the purchase and sale of such Accepted Shelf
Note is rescheduled pursuant to paragraph 3H, the Closing Day for
such Accepted Shelf Note, for all purposes of this Agreement
except paragraph 3I(iv), shall mean the Rescheduled Closing Day
with respect to such Closing.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Company" shall mean NPC Management, Inc., a Delaware
corporation.
"Confirmation of Acceptance" shall have the meaning
specified in paragraph 3F.
"Consolidated Net Earnings" shall mean for any period
the net income or net loss of NPC International and its
Subsidiaries on a consolidated basis as determined in accordance
with generally accepted accounting principles consistent with
those followed in the preparation of the financial statements
referred to in paragraph 10B, provided that (i) there shall not
be included in calculating such amount (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 NPC International in which
such Subsidiary was acquired, or (d) any gains resulting from the
write-up of assets, (ii) there shall not be included in
calculating such amount any gain resulting from the sale of any
capital assets other than in the ordinary course of business or
any extraordinary or nonrecurring gains, except that such gains
may be included only to offset the aggregate amount of losses
(net of any tax effect) resulting from the sale of capital assets
other than in the ordinary course of business and extraordinary
or nonrecurring losses and (iii) for the purposes of calculating
Consolidating Net Earnings with respect to the last day of the
fiscal quarter ending 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 ▇▇▇▇ ▇▇▇▇'▇ locations
during calendar year 1996, which might otherwise be required
under such generally accepted accounting principles.
"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) consolidated (i)
interest expense, (ii) provision for income taxes, (iii)
depreciation and amortization, and (iv) operating lease expense.
"Consolidated Net Worth" shall mean the sum of (i) the
par value (or value stated on the books of the corporation) of
the capital stock of all classes of NPC International, plus (or
minus in the case of a deficit) (ii) the amount of paid in
capital plus retained earnings (netting any treasury stock, ESOP
obligations or similar contra accounts), whether capital or
earned, of NPC International.
"Current Debt" shall mean any obligation for borrowed
money (and any notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for
borrowed money) payable on demand or within a period of one year
from the date of the creation thereof; provided that any
obligation shall be treated as Funded Debt, regardless of its
term, if such obligation is renewable pursuant to the terms
thereof or of a revolving credit or similar agreement effective
for more than one year after the date of the creation of such
obligation, or may be payable out of the proceeds of a similar
obligation pursuant to the terms of such obligation or of any
such agreement. Any obligation secured by a Lien on, or payable
out of the proceeds of production from, property of the Company
or any Guarantor shall be deemed to be Funded Debt or Current
Debt, as the case may be, of the Company or such Guarantor even
though such obligation shall not be assumed by the Company or
such Guarantor. For purposes of this definition, "borrowed
money" shall not include trade accounts payable, accrued expenses
or income taxes payable.
"Current Maturities of Funded Debt" shall mean any
Funded Debt obligation payable on demand or within a period of
one year from the date of determination; provided that an
obligation shall not be included herein if such Funded Debt
obligation (i) is renewable beyond one year from the date of
determination at the sole election of the Company (or a
Guarantor, if applicable) pursuant to the terms thereof, (ii) is
created pursuant to a revolving credit or similar agreement which
is renewable beyond one year from the date of determination at
the sole election of the Company (or a Guarantor, if applicable)
pursuant to the terms thereof, or (iii) may be repaid out of the
uncommitted proceeds of a revolving credit or similar agreement,
the maturity of which is more than one year from the date of
determination.
"Debt" shall mean Funded Debt and/or Current Debt, as
the case may be; provided, however, that the term Funded Debt
and/or Current Debt, as the case may be, shall not include any of
NPC International's obligations under the Indemnification
Agreements.
"Delayed Delivery Fee" shall have the meaning specified
in paragraph 3I(iii).
"Discounted Value" shall mean, with respect to the
Called Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (applied on a semiannual basis) equal to the Reinvestment
Yield with respect to such Called Principal.
"EBITDA" for any period shall mean the sum of
Consolidated Operating Income (as defined according to GAAP)
during such period, plus (to the extent deducted in determining
Consolidated Operating Income during such period) consolidated
depreciation and amortization.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean any trade or business
(whether or not incorporated) which is a member of a group of
which the Company or NPC International is a member and which is
under common control within the meaning of the regulations under
Section 414 of the Code.
"Event of Default" shall mean any of the events
specified in paragraph 9A, provided that there has been satisfied
any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further
condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Facility" shall have the meaning specified in
paragraph 3A.
"Facility Fee" shall have the meaning specified in
paragraph 3I(i).
"Fixed Charges" shall mean the sum of consolidated (i)
interest expense and (ii) operating lease expense, each for the
four fiscal quarters most recently ended as of the date of
determination, and (iii) Current Maturities of consolidated
Funded Debt of the Company and all Guarantors as of the end of
the fiscal quarter most recently ended as of the date of
determination.
"Franchise Agreement" shall mean any franchise
agreement, license or other permit necessary to permit the
Company or any Guarantor to operate under the name "Pizza Hut".
"Funded Debt" shall mean and include without
duplication,
(i) any obligation payable more than one year from the
date of creation thereof, which under generally accepted
accounting principles is shown on the balance sheet as a
liability (including Capitalized Lease Obligations but
excluding reserves for deferred income taxes and other
reserves to the extent that such reserves do not constitute
an obligation),
(ii) indebtedness payable more than one year from the
date of creation thereof which is secured by any Lien on
property owned by the Company or any Guarantor, whether or
not the indebtedness secured thereby shall have been assumed
by the Company or such Guarantor,
(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 such Person primarily to
maintain working capital, net worth or any other balance
sheet condition or to pay debts, dividends or expenses,
(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 any 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 or requires that the lessee purchase or
otherwise acquire securities or obligations of the lessor,
(vii) obligations under any contract for the sale or
use 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, or the use thereof, shall be subordinated to any
indebtedness (of the purchaser or user of such materials,
supplies or other property or the Person entitled to the
benefit of such services) owed or to be owed to any Person,
(viii) obligations under any other contract which, in
economic effect, is substantially equivalent to a guarantee,
and
(ix) liabilities in respect of unfunded vested benefits
under plans covered by Title IV of ERISA,
all as determined in accordance with generally accepted
accounting principles.
"Guarantors" shall mean NPC International and all
existing and future Subsidiaries of the Company or NPC
International who, at any time, is a party to the Guaranty
Agreement, collectively, and references to a "Guarantor" shall
mean any of such entities individually.
"Guaranty Agreement" shall mean that certain Master
▇▇▇▇▇▇▇▇ executed and delivered by the Guarantors on the date
hereof.
"Hedge Treasury Note(s)" shall mean, with respect to
any Accepted Shelf Note, the United States Treasury Note or Notes
whose duration (as reasonably determined by Prudential) most
closely matches the duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to the
use of proceeds of any Note, any offer to purchase, or any
purchase of, shares of capital stock of any corporation or equity
interests in any other entity, or securities convertible into or
representing the beneficial ownership of, or rights to acquire,
any such shares or equity interests, if such shares, equity
interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter
market, other than purchases of such shares, equity interests,
securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other
entity for portfolio investment purposes, and such offer or
purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other
entity prior to the date on which the Company makes the Request
for Purchase of such Note.
"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.
"Initial Closing" shall have the meaning specified in
paragraph 2B.
"Initial Date of Closing" shall have the meaning
specified in paragraph 2B.
"Issuance Period" shall have the meaning specified in
paragraph 3B.
"Joinder Agreement" shall mean the Joinder Agreement
referenced in, and attached as Exhibit A to, the Guaranty
Agreement.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any lease in the nature thereof,
and the filing of, or agreement to give, any financing statement
under the Uniform Commercial Code of any jurisdiction) or any
other type of preferential arrangement encumbering property.
"Multiemployer Plan" shall mean any plan which is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"New Shelf Notes" shall have the meaning specified in
paragraph 1C.
"Notes" shall mean all senior notes issued by the
Company pursuant to this Agreement, including the Shelf Notes and
each note delivered in substitution or exchange thereof.
"Officer's Certificate" shall mean a certificate signed
in the name of the Company by its President, one of its Vice
Presidents or its Treasurer.
"Original Note Agreement" shall have the meaning
specified in the recitals hereto.
"Original Shelf Notes" shall have the meaning specified
in the recitals and paragraph 1A.
"Permitted Guaranty Debt" shall mean any Debt evidenced
by the Guaranty Agreement and, so long as the Sharing Agreement
is in effect and the beneficiary of such guaranty agreement is a
party to the Sharing Agreement, (i) any Debt evidenced by any
guaranty agreement given by any Guarantor in favor of any holder
of any Debt described on Schedule 8(C)(2) attached hereto, and
(ii) any Debt evidenced by any guaranty agreement given by any
Guarantor in favor of any holder of any Debt that may be incurred
in the future pursuant to, and in accordance with the terms and
conditions of, paragraph 8C(2)(a)(v) whereby such Guarantor
guarantees the payment of all principal, interest and other
amounts, if any, payable in respect of such Debt.
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Plan" shall mean an "employee pension benefit plan"
(as defined in section 3 of ERISA) which is or has been
established or maintained, or to which contributions are or have
been made, by the Company or NPC International or by any trade or
business, whether or not incorporated, which, together with the
Company, is under common control, as described in section 414(b)
or (c) of the Code.
"Priority Debt" shall have the meaning specified in
paragraph 8C(1).
"Pro Forma EBITDA" shall mean EBITDA provided, however,
for the purpose of calculating Pro Forma EBITDA (i) with respect
to the last day of the fiscal quarter ending 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 ▇▇▇▇ ▇▇▇▇'▇ locations during calendar
year 1996, which might otherwise be required under GAAP and (ii)
with respect to any Pizza Hut or ▇▇▇▇ ▇▇▇▇'▇ restaurant acquired
(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 without
duplication and reasonably 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 (collectively, the "Acquisition Adjustments"). Prior
to, and in connection with, the calculation of Pro Forma EBITDA,
the Company shall provide each Purchaser with appropriate
documentation, certified by an authorized financial officer of
the Company, supporting the reasonableness of the Acquisition
Adjustments.
"Prudential" shall mean The Prudential Insurance
Company of America.
"Prudential Affiliate" shall mean any corporation or
other entity all of the Voting Stock (or equivalent voting
securities or interests) of which is owned by Prudential either
directly or through Prudential Affiliates.
"Prudential Documents" shall mean this Agreement, the
Notes, the Guaranty Agreement, 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 Prudential
Document, as they may be modified or amended from time to time in
accordance with the terms and provision thereof.
"Purchasers" shall mean, with respect to any Accepted
Shelf Notes the Persons, either Prudential or a Prudential
Affiliate, who are purchasing such Accepted Shelf Notes.
"Reinvestment Yield" shall mean, with respect to the
Called Principal of any Note, the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City time) on
the Business Day next preceding the Settlement Date with respect
to such Called Principal, on the display designated as "Page 678"
on the Telerate Service (or such other display as may replace
Page 678 on the Telerate Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date,
or if such yields shall not be reported as of such time or the
yields reported as of such time shall not be ascertainable, (ii)
the Treasury Constant Maturity Series yields reported, for the
latest day for which such yields shall have been so reported as
of the Business Day next preceding the Settlement Date with
respect to such Called Principal, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall
be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between
reported yields.
"Remaining Average Life" shall mean, with respect to
the Called Principal of any Note, the number of years (calculated
to the nearest one-twelfth year) obtained by dividing (i) such
Called Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" shall mean, with respect
to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due on or after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled
due date.
"Request for Purchase" shall have the meaning specified
in paragraph 3D.
"Required Holder(s)" shall mean, (i) the holder or
holders of at least 66-2/3% of the aggregate principal amount of
all Notes outstanding at the time of determination, or (ii) with
respect to the decision to accelerate a Series of Notes under
paragraph 9A the holder or holders of at least 66-2/3% of the
aggregate principal amount of the Notes of such Series
outstanding at such time.
"Required Prepayment" shall have the meaning specified
in paragraph 6A.
"Rescheduled Closing Day" shall have the meaning
specified in paragraph 3H.
"Responsible Officer" shall mean the chief executive
officer, chief operating officer, chief financial officer or
chief accounting officer of the Company, general counsel of the
Company or any other officer of the Company involved principally
in its financial administration or its controllership function.
"Restructuring" shall have the meaning specified in the
recitals hereto.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series" shall have the meaning specified in paragraph
1C.
"Settlement Date" shall mean, with respect to the
Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to paragraph 6B or is
declared to be immediately due and payable pursuant to paragraph
9A, as the context requires.
"Sharing Agreement" shall mean that certain Sharing
Agreement executed and delivered as of the date hereof,
substantially in the form of Exhibit F attached hereto, as
amended from time to time.
"Shelf Notes" shall have the meaning specified in
paragraph 1C.
"Skipper's Sale" shall mean NPC International's sale of
the common stock of Skipper's, Inc. in accordance with all of the
terms and conditions of the Acquisition Agreement.
"Significant Holder" shall mean (i) Prudential, so long
as Prudential or any Prudential Affiliate shall hold (or be
committed under this agreement to purchase) any Note, or (ii) any
other holder of at least 10% of the aggregate principal amount of
the Notes from time to time outstanding.
"Subsidiary" shall mean any corporation, limited
liability company, general partnership or limited partnership
organized under the laws of any state of the United States of
America, Canada, or any province of Canada, which conducts the
major portion of its business in and makes the major portion of
its sales to Persons located in the United States of America or
Canada, and all of the stock (or other ownership interests) of
every class of which, except directors' qualifying shares shall,
at the time as of which any determination is being made, be owned
by the Company or NPC International either directly or through
Subsidiaries.
"Substantial Stockholder" shall mean (i) any Person
owning, directly or indirectly, either individually or together
with all other Persons to whom such Person is related by blood,
adoption or marriage, 5% or more of the outstanding voting stock
of NPC International, or (ii) any Person related by blood,
adoption or marriage to any Person coming within the provisions
of clause (i) of this definition.
"Termination Event" shall mean (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the Pension Benefit Guaranty
Corporation under such regulations), or (ii) the withdrawal of
the Company or NPC International or any of its ERISA Affiliates
from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the
filing of a notice of intent to terminate a Plan or the treatment
of a Plan amendment as a termination under Section 4041 of ERISA,
or (iv) the institution of proceedings to terminate a Plan by the
Pension Benefit Guaranty Corporation, or (v) any other event or
condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Transferee" shall mean any direct or indirect
transferee of all or any part of any Note purchased by a
Purchaser under this Agreement.
"Yield-Maintenance Amount" shall mean, with respect to
any Note, an amount equal to the excess, if any, of the
Discounted Value of the Called Principal of such Note over the
sum of (i) such Called Principal plus (ii) interest accrued
thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance
Amount shall in no event be less than zero.
12B. Accounting Principles, Terms and
Determinations12B. Accounting Principles, Terms and
Determinations12B. Accounting Principles, Terms and
Determinations. All unaudited financial statements required to
be furnished hereunder shall be prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with the most recent audited consolidated financial
statements of NPC International and its Subsidiaries delivered
pursuant to clause (ii) of paragraph 7A or, if no such statements
have been so delivered, the most recent audited financial
statements referred to in clause (i) of paragraph 10B. Except as
provided above, all references in this Agreement to "generally
accepted accounting principles" shall be deemed to refer to
generally accepted accounting principles in effect in the United
States as of the date hereof and applied on a basis consistent
with NPC International's audited financial statements for the
fiscal year ended March 26, 1996. All certificates and reports
as to financial matters required to be furnished hereunder shall
be prepared so as to illustrate in reasonably detail all
adjustments between the generally accepted accounting principles
used in NPC International's financial statements provided
pursuant to paragraph 7A and the generally accepted accounting
principles used herein.
13. MISCELLANEOUS.. MISCELLANEOUS..
MISCELLANEOUS.
13A. Note Payments.. Note Payments.. Note
Payments. So long as any Purchaser shall hold any Note, the
Company will make payments of principal thereof and Yield-
Maintenance Amount, if any, and interest thereon, which comply
with the terms of this Agreement, not later than 12:00 noon (New
York City time) on the day when due by wire transfer of
immediately available funds for credit to such Purchaser's
account or accounts as specified in the Information Schedule
attached hereto, or such other account or accounts in the United
States as such Purchaser may designate in writing, notwith
standing any contrary provision herein or in any Note with
respect to the place of payment. Each Purchaser agrees that,
before disposing of any Note, it will make a notation thereon (or
on a schedule attached thereto) of all principal payments
previously made thereon and of the date to which interest thereon
has been paid. The Company agrees to afford the benefits of this
paragraph 13A to any Transferee which shall have made the same
agreement as the Purchasers have made in this paragraph 13A.
13B. Expenses.. Expenses.. Expenses. The
Company agrees, whether or not the transactions contemplated
hereby shall be consummated, to pay, and save Prudential, any
Prudential Affiliate and any Transferee harmless against
liability for the payment of, all out-of-pocket expenses arising
in connection with such transactions (other than such costs and
expenses associated with or resulting from the resale of the
Notes), including (i) all document production and duplication
charges and the fees and expenses of any special counsel engaged
by Prudential in connection with this Agreement and the
transactions contemplated hereby, and all document production and
duplication charges and the fees and expenses of any counsel or
special counsel engaged by Prudential or any Transferee in
connection with any subsequent proposed modification of, or
proposed consent under, this Agreement, whether or not such
proposed modification shall be effected or proposed consent
granted, and (ii) to the extent permitted by applicable law, the
costs and expenses, including reasonable attorneys' fees,
incurred by Prudential or any Transferee in enforcing any rights
against the Company under this Agreement or the Notes (whether in
the contest of civil action, adversary proceeding workout or
otherwise) or in responding to any subpoena or other legal
process issued in connection with this Agreement or the
transactions contemplated hereby or by reason of Prudential, any
Prudential Affiliate or any Transferee's having acquired any
Note, including without limitation costs and expenses incurred in
any bankruptcy case. The obligations of the Company under this
paragraph 13B shall survive the transfer of any Note or portion
thereof or interest therein by Prudential, any Prudential
Affiliate or any Transferee and the payment of any Note.
13C. Consent to Amendments.. Consent to Amendments..
Consent to Amendments. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform
any act herein required to be performed by it, if the Company
shall obtain the written consent to such amendment, action or
omission to act, of the Required Holder(s) except that, without
the written consent of the holder or holders of all Notes at the
time outstanding, no amendment to this Agreement shall change the
maturity of any Note, or change the principal of, or the rate or
time of payment of interest or any premium payable with respect
to any Note, or affect the time, amount or allocation of any
required prepayments, or reduce the proportion of the principal
amount of the Notes required with respect to any consent. Each
holder of any Note at the time or thereafter outstanding shall be
bound by any consent authorized by this paragraph 13C, whether or
not such Note shall have been marked to indicate such consent,
but any Notes issued thereafter may bear a notation referring to
any such consent. No course of dealing between the Company and
the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any
rights of any holder of such Note. As used herein and in the
Notes, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or
supplemented.
13D. Form, Registration, Transfer and Exchange of
Notes; Lost Notes.. Form, Registration, Transfer and Exchange of
Notes; Lost Notes.. Form, Registration, Transfer and Exchange of
Notes; Lost Notes. The Notes are issuable as registered notes
without coupons in denominations of at least $1,000,000, except
as may be necessary to reflect any principal amount not evenly
divisible by $1,000,000. The Company shall keep at its principal
office a register in which the Company shall provide for the
registration of Notes and of transfers of Notes. Upon surrender
for registration of transfer of any Note at the principal office
of the Company, the Company shall, at its expense, execute and
deliver one or more new Notes of like tenor and of a like
aggregate principal amount, registered in the name of such
transferee or transferees. At the option of the holder of any
Note, such Note may be exchanged for other Notes of like tenor
and of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Note to be exchanged at
the principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the holder making the ex
change is entitled to receive. Every Note surrendered for
registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or such holder's attorney duly
authorized in writing. Any Note or Notes issued in exchange for
any Note or upon transfer thereof shall carry the rights to
unpaid interest and interest to accrue which were carried by the
Note so exchanged or transferred, so that neither gain nor loss
of interest shall result from any such transfer or exchange.
Upon receipt of written notice from the holder of any Note of the
loss, theft, destruction or mutilation of such Note and, in the
case of any such loss, theft or destruction, upon receipt of such
holder's unsecured indemnity agreement, or in the case of any
such mutilation upon surrender and cancellation of such Note, the
Company will make and deliver a new Note, of like tenor, in lieu
of the lost, stolen, destroyed or mutilated Note.
13E. Persons Deemed Owners; Participations.. Persons
Deemed Owners; Participations.. Persons Deemed Owners;
Participations. Prior to due presentment for registration of
transfer, the Company may treat the Person in whose name any Note
is registered as the owner and holder of such Note for the
purpose of receiving payment of principal of and premium, if any,
and interest on such Note and for all other purposes whatsoever,
whether or not such Note shall be overdue, and the Company shall
not be affected by notice to the contrary. Subject to the
preceding sentence, the holder of any Note may from time to time
grant participations in all or any part of such Note to any
Person on such terms and conditions as may be determined by such
holder in its sole and absolute discretion.
13F. Survival of Representations and Warranties; Entire
Agreement.. Survival of Representations and Warranties; Entire
Agreement.. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein or
made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this
Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein and the payment of
any Note, and may be relied upon by any Transferee, regardless of
any investigation made at any time by or on behalf of such
Purchaser or any Transferee until such time as all principal of,
interest and Yield-Maintenance Amount (if any) on, the Notes have
been paid in full. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and
understanding between Prudential and the Company and supersede
all prior agreements and understandings relating to the subject
matter hereof.
13G. Successors and Assigns.. Successors and Assigns..
Successors and Assigns. All covenants and other agreements in
this Agreement contained by or on behalf of either of the parties
hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including, without
limitation, any Transferee) whether so expressed or not.
13H. Disclosure to Other Persons; Confidentiality..
Disclosure to Other Persons; Confidentiality.. Disclosure to
Other Persons; Confidentiality. The Company acknowledges that
the holder of any Note may deliver copies of any financial
statements and other documents delivered to such holder, and
disclose any other information disclosed to such holder, by or on
behalf of the Company or any Guarantor in connection with or
pursuant to this Agreement to (i) such holder's directors,
officers, employees, agents and professional consultants, (ii)
any other holder of any Note, (iii) any Person to which such
holder offers to sell such Note or any part thereof, (iv) any
Person to which such holder sells or offers to sell a
participation in all or any part of such Note, (v) any federal or
state regulatory authority having jurisdiction over such holder,
(vi) the National Association of Insurance Commissioners or any
similar organization or (vii) any other Person to which such
delivery or disclosure may be necessary or appropriate (a) in
compliance with any law, rule, regulation or order applicable to
such holder, (b) in response to any subpoena or other legal
process, (c) in connection with any litigation to which such
holder is a party, (d) in order to protect such holder's
investment in such Note or (e) to correct any false or misleading
information which may become public concerning the relationship
with such holder to the Company or any Guarantor.
Except as provided in the previous sentence, each holder agrees
that it will use its best efforts to hold in confidence and not
to disclose the Confidential Information. As used herein
"Confidential Information" means copies of any financial
statements and other documents delivered to such holder, and any
other information disclosed to such holder, by or on behalf of
the Company or any Guarantor in connection with or pursuant to
this Agreement, but does not include information (i) which was
publicly known or otherwise known to such holder, at the time of
disclosure, (ii) which subsequently becomes publicly known
through no act or omission of such holder, or (iii) which
otherwise becomes known to such holder, other than through
disclosure by the Company or any Guarantor.
13I. Notices.. Notices.. Notices. All notices or other
communications provided for hereunder (except for the telephonic
notice required by paragraph 6D) shall be in writing and sent by
first class mail or nationwide overnight delivery service (with
charges prepaid) or telecopy (with receipt confirmed by the
recipient) and, (i) if to Prudential, addressed to it at the
address specified for such communications in the Information
Schedule attached hereto, or at such other address as it shall
have specified to the Company in writing, (ii) if to any other
holder of any Note, addressed to such other holder at such
address as such other holder shall have specified to the Company
in writing or, if any such other holder shall not have so
specified an address to the Company, then addressed to such other
holder in care of the last holder of such Note which shall have
so specified an address to the Company, and (iii) if to the
Company, addressed to it at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer (telecopy number (316)
231-1188), or at such other address as the Company shall have
specified to the holder of each Note in writing; provided,
however, that any such communication to the Company may also, at
the option of the holder of any Note, be delivered by any other
reasonable means either to the Company at its address specified
above or to any officer of the Company.
13J. Descriptive Headings.. Descriptive Headings..
Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
13K. Satisfaction Requirement.. Satisfaction
Requirement.. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be taken,
is by the terms of this Agreement required to be satisfactory to
any Purchaser or to the Required Holders, the determination of
such satisfaction shall be made by such Purchaser or the Required
Holders, as the case may be, in the sole and exclusive judgment
(exercised in good faith) of such Purchaser or the Required
Holders, as the case may be, making such determination.
13L. Governing Law.. Governing Law.. Governing
Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF KANSAS.
13M. Integration.. Integration.. Integration. This
Agreement may not be changed orally, but (subject to the
provisions of paragraph 13C) only by an agreement in writing
signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought. THIS WRITTEN LOAN
AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AGREEMENT,
TOGETHER WITH ALL OTHER WRITTEN AGREEMENTS BETWEEN PRUDENTIAL AND
THE COMPANY, IS THE FINAL EXPRESSION OF THE NOTE AGREEMENT
BETWEEN PRUDENTIAL AND THE COMPANY, AND SUCH WRITTEN NOTE
AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL
AGREEMENT OR OF A CONTEMPORANEOUS ORAL AGREEMENT BETWEEN
PRUDENTIAL AND THE COMPANY. ANY ADDITIONAL NON-STANDARD TERMS OF
THIS AGREEMENT BETWEEN PRUDENTIAL AND THE COMPANY INCLUDING THE
REDUCTION TO WRITING OF A PREVIOUS ORAL AGREEMENT BETWEEN
PRUDENTIAL AND THE COMPANY ARE SET FORTH IN THE SPACE BELOW:
None
NO UNWRITTEN ORAL AGREEMENT BETWEEN PRUDENTIAL AND THE
COMPANY EXISTS.
13N. Maximum Interest Payable.. Maximum Interest
Payable.. Maximum Interest Payable. The Company, any Purchaser
and any other holders of the Notes specifically intend and agree
to limit contractually the amount of interest payable under this
Agreement, the Notes and all other instruments and agreements
related hereto and thereto to the maximum amount of interest
lawfully permitted to be charged under applicable law.
Therefore, none of the terms of this Agreement, the Notes or any
instrument pertaining to or relating to this Agreement or the
Notes shall ever be construed to create a contract to pay
interest at a rate in excess of the maximum rate permitted to be
charged under applicable law, and neither the Company, any
Guarantor nor any other party liable or to become liable
hereunder, under the Notes, any guaranties or under any other
instruments and agreements related hereto and thereto shall ever
be liable for interest in excess of the amount determined at such
maximum rate, and the provisions of this paragraph shall control
over all other provisions of this Agreement, the Notes, any
guaranties or any other instrument pertaining to or relating to
the transactions herein contemplated. If any amount of interest
taken or received by any Purchaser or any holder of a Note shall
be in excess of said maximum amount of interest which, under
applicable law, could lawfully have been collected by any
Purchaser or such holder incident to such transactions, then such
excess shall be deemed to have been the result of a mathematical
error by all parties hereto and shall be refunded promptly by the
Person receiving such amount to the party paying such amount, or,
at the option of the recipient, credited ratably against the
unpaid principal amount of the Note or Notes held by such
Purchaser or such holder, respectively. All amounts paid or
agreed to be paid in connection with such transactions which
would under applicable law be deemed "interest" shall, to the
extent permitted by such applicable law, be amortized, prorated,
allocated and spread throughout the stated term of this
Agreement. "Applicable law" as used in this paragraph means that
law governing this Agreement in effect from time to time which
permits the charging and collection of the highest permissible
lawful, nonusurious rate of interest on the transactions herein
contemplated and"maximum rate" as used in this paragraph means,
with respect to each of the Notes, the maximum lawful,
nonusurious rates of interest (if any) which under applicable law
may be charged to the Company from time to time with respect to
such Notes.
13O. Counterparts; Fax.. Counterparts; Fax..
Counterparts; Fax. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such
counterpart. This Agreement may be executed and delivered by fax
or other electronic transmission.
13P. Payments Due on Non-Business Days13P. Payments
Due on Non-Business Days13P. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or interest on, or
Yield-Maintenance Amount payable with respect to, any Note that
is due on a date other than a Business day shall be made on the
next succeeding Business Day. If the date for any payment is
extended to the next succeeding Business Day by reason of the
preceding sentence, the period of such extension shall be
included in the computation of the interest payable on such
Business Day.
13Q. Agreement of NPC International and its
Subsidiaries.. Agreement of NPC International and its
Subsidiaries.. Agreement of NPC International and its
Subsidiaries. By its execution and delivery hereof, NPC
International agrees to perform, and cause each Subsidiary to
perform, each obligation hereunder which the Company has agreed
to cause NPC International and such Subsidiaries to perform, and
further agrees to not take any action which the Company has
agreed to not permit NPC International or any such Subsidiary to
take.
[Signatures follow]
IN WITNESS WHEREOF, the parties have executed this Agreement in
multiple copies, each of which shall constitute on original copy, to be
effective as of the date first written above.
Very truly yours,
NPC Management, Inc.
By______________________________
Title:
NPC International, Inc.
By______________________________
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
The Prudential Insurance Company
of America
By______________________________
Vice President