SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT,
dated as of June 20, 2000 (this "Agreement"), is entered into
among NPC MANAGEMENT, INC., a Delaware corporation (the
"Company"), the banks listed on the signature pages hereof
(together with such other financial institutions that from time to
time become parties hereto, individually a "Bank" and collectively
the "Banks"), CHASE BANK OF TEXAS, NATIONAL ASSOCIATION ("CBT"),
as Administrative Agent for the Banks, BANK OF AMERICA, N.A., as
Documentation Agent for the Banks and SUNTRUST BANK, as
Syndication Agent for the Banks.
WHEREAS, the Company, the Banks, CBT as Administrative Agent
and Bank of America, N.A., as Documentation Agent, have entered
into the Existing Revolving Credit Facility (as hereinafter
defined) providing for commitments from such Banks to make loans
to the Company and to participate in letters of credit issued for
the account of the Company;
WHEREAS, the Company and CBT, as Administrative Agent and as
the Bank thereunder, have entered into the Existing Swingline
Credit Facility (as hereinafter defined) providing for commitments
from CBT to make loans to the Company;
WHEREAS, the Company has voluntarily requested that the
Banks, and the Banks have agreed to, restructure, rearrange and
renew the Existing Credit Facilities and the respective
commitments of the Banks and the Administrative Agent parties to
the Existing Credit Facilities into obligations and commitments
hereunder;
WHEREAS, the parties hereto intend to amend and restate the
Existing Credit Facilities in their entirety as hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH
FINANCIAL RESTRICTIONS.
1.1 Definitions. In addition to the terms defined elsewhere
in this Agreement, the following terms shall have the meanings
indicated for purposes of this Agreement (such meanings to be
equally applicable to both the singular and plural forms of the
terms defined):
Acquisition Agreement shall mean the Acquisition Agreement
dated as of March 25, 1996 by and among Seattle Crab Co., NPCI and
Skipper's, Inc.
Affiliate of any Person means any other Person that, directly
or indirectly, controls, is controlled by or is under common
control with such Person (excluding any trustee under, or any
committee with responsibility for administering, any Plan
(hereinafter defined)). A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or
indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election
of directors or managing general partners of such Person; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
Administrative Agent means CBT as Administrative Agent for
the Banks hereunder and each successor, as provided in Section
14.8, who shall act as Administrative Agent.
Alternate Base Rate means a per annum interest rate which is
the greater at any time of (i) the rate of interest then most
recently announced by CBT at Houston, Texas as its prime rate, or
(ii) 0.5% plus the Federal Funds Rate. Such prime rate of CBT is
not necessarily intended to be the lowest rate of interest
determined by CBT in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans
maintained as Alternate Base Rate Loans shall take effect
simultaneously with each change in the Alternate Base Rate. The
Administrative Agent shall give notice promptly to the Company and
the Banks of changes in the Alternate Base Rate.
Assignee shall have the meaning set forth in Section
15.3(c)(i).
Assignment and Acceptance shall have the meaning set forth in
Section 15.3(c)(i).
Bank -- see the Preamble.
Banking Day means any day on which banks are open for
business in Houston, Texas, and with respect to Eurodollar Loans,
on which dealings in foreign currencies and exchange may be
carried on by the Administrative Agent in the interbank Eurodollar
market.
CBT -- see the Preamble.
Capitalized Lease means any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with
GAAP.
Capitalized Lease Obligations shall mean the amount at which
the aggregate rentals due and to become due under all Capitalized
Leases under which NPCI or any Subsidiary thereof, as a lessee,
would be required to be reflected as a liability on the
consolidated balance sheet of NPCI.
Code means the Internal Revenue Code of 1986 and any
successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time.
References to sections of the Code shall be construed to also
refer to any successor sections.
Commitment means, with respect to each Bank, the commitment
of such Bank to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, and, as to the
Swingline Lender to make Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Bank's
Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 7.4, (b) reduced or
increased from time to time pursuant to assignments by or to such
Bank pursuant to Section 15.3(c) and (c) increased from time to
time pursuant to Section 2.1(b). Each Swingline Loan, whether or
not participated among the Banks, shall be deemed as to each Bank
a pro rata usage of such Bank's Commitment. The initial amount of
each Bank's Commitment is set forth on the signature pages hereto,
or in the Assignment and Acceptance pursuant to which such Bank
shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Banks' Commitments is $180,000,000.
Company -- see the Preamble.
Computation Period means any period of four consecutive
fiscal quarters of NPCI ending on the last day of a fiscal
quarter.
Consolidated Funded Debt shall mean all Funded Debt of NPCI
and its Subsidiaries, determined on a consolidated basis
eliminating intercompany items.
Consolidated Net Earnings means the consolidated gross
revenues of NPCI and its Subsidiaries less all operating and non-
operating expenses of NPCI and its Subsidiaries including taxes on
income, all determined in accordance with GAAP consistent with
those followed in the preparation of the financial statements
referred to in Section 11.5, provided that (i) there shall not be
included in revenues (a) any income representing the excess of
equity in any Subsidiary at the date of acquisition over the
investment in such Subsidiary, (b) any equity in the undistributed
earnings of any corporation which is not a Subsidiary, (c) any
earnings of any Subsidiary for any period prior to the fiscal year
of NPCI in which such Subsidiary was acquired, or (d) any gains
resulting from the write-up of assets, and (ii) capital gains may
be included in revenues only to offset capital losses.
Consolidated Net Income Available for Fixed Charges for any
period shall mean the sum of Consolidated Net Earnings during such
period, plus (to the extent deducted in determining Consolidated
Net Earnings during such period) (i) interest expense, (ii)
provision for income taxes, (iii) depreciation and amortization,
and (iv) operating lease expense in each case on a consolidated
basis; provided, to the extent added to or deducted from income,
Facility Action Charges will be subtracted from or added back to
Consolidated Net Income Available for Fixed Charges; however
Consolidated Net Income Available for Fixed Charges will be
adjusted for Facility Action Cash Costs.
Consolidated Net Worth means, at any time, the total of
stockholders' equity (including capital stock, additional paid-in
capital and retained earnings after deducting treasury stock, ESOP
obligations and similar contra accounts) of NPCI and its
Subsidiaries calculated in accordance with GAAP.
Dollars and the sign "$" mean lawful money of the United
States of America.
EBITDA means Consolidated Net Earnings before interest
expense, provision for taxes (to the extent not excluded from
Consolidated Net Earnings), depreciation, amortization and the
noncash portion of nonrecurring charges (as defined by GAAP) plus
cash pre-opening expenses; provided, to the extent added to or
deducted from income, Facility Action Charges will be subtracted
from or added back to EBITDA; however EBITDA will be adjusted for
Facility Action Cash Costs.
Effective Date means the date on which all the conditions
precedent set forth in Section 10 are met or waived in writing by
the Administrative Agent and the Majority Banks.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA shall
be construed to also refer to any successor sections.
ERISA Affiliate means any corporation, trade or business that
is, along with NPCI, a member of a controlled group of
corporations or a controlled group of trades or businesses, as
described in sections 414 (b) and 414 (c), respectively, of the
Code.
Equity Interests means shares of the capital stock,
partnership interests, membership interest in a limited liability
company, beneficial interests in a trust or other equity interests
in the Company or any Guarantor or any warrants, options or other
rights to acquire such interests.
Eurocurrency Reserve Percentage means, with respect to any
Interest Period, a percentage (expressed as a decimal) equal to
the daily average during such Interest Period of the percentages
in effect on each day of such Interest Period, as prescribed by
the Board of Governors of the Federal Reserve System (or any
successor), for determining reserve requirements applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other
then applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurocurrency
liabilities," as presently defined in Regulation D. For purposes
of this definition, any Eurodollar Loans hereunder shall be deemed
to be "Eurocurrency liabilities" as defined in Regulation D.
Eurodollar Loan means any Revolving Loan which bears interest
at a rate determined with reference to the Interbank Rate (Reserve
Adjusted).
Event of Default means any of the events described in Section
13.1.
Existing Credit Facilities means, collectively, the Existing
Revolving Credit Facility and the Existing Swingline Credit
Facility.
Existing Revolving Credit Facility means that certain
$185,000,000 Amended and Restated Revolving Credit Agreement dated
as of May 8, 1997 among the Company, CBT as Administrative Agent,
and the lenders party thereto.
Existing Revolving Note means that certain promissory note
dated as of May 8, 1997 in the original principal amount of
$185,000,000 executed and delivered by the Company under the
Existing Revolving Credit Facility.
Existing Swingline Credit Facility means that certain
$15,000,000 Amended and Restated Revolving Credit Agreement dated
as of May 8, 1997 among the Company, CBT as Administrative Agent,
and the lenders party thereto.
Existing Swingline Note means that certain Series B Note
dated as of May 8, 1997 executed and delivered by the Company
under the Existing Swingline Credit Facility.
Facility Action Cash Costs means the net cash expenses or
income incurred or received by NPCI and its Subsidiaries to
service its ongoing, regular monthly obligations (rent, taxes,
etc.) under the operating lease obligations existing for units
closed as a part of any such Person's asset re-imaging plan.
Specifically excluded from this definition are proceeds received
from the sale of properties or lease interests and lease buy-out
payments made to landlords to terminate any such Person's lease
obligations for these closed units.
Facility Action Charges means the charges recorded to impair
or write-off fixed asset and intangible asset values (non-cash
facility action charges) in accordance with SFAS No. 121 (GAAP),
as well as the accrual of certain exit costs (future lease
payments, property taxes, etc.) accrued by NPCI and its
Subsidiaries to exit properties identified for closure in
accordance with EITF 94-3 as part of NPCI and its Subsidiaries'
asset re-imaging program.
Federal Funds Rate means for any date the weighted average of
the rates on overnight Federal Funds transactions, with members of
the Federal Reserve System only, arranged by Federal Funds brokers
applicable to Federal Funds transactions on that date. The
Federal Funds Rate shall be determined by the Administrative Agent
on the basis of reports by Federal Funds brokers to, and published
daily by, the Federal Reserve Bank of New York in the Composite
Closing Quotations for U.S. Government Securities. If such
publication is unavailable or the Federal Funds Rate is not set
forth therein, the Federal Funds Rate shall be determined on the
basis of any other source reasonably selected by the
Administrative Agent. In the case of a day which is not a Banking
Day, the Federal Funds Rate shall be the Federal Funds Rate for
the immediately preceding Banking Day.
Fixed Charges shall mean the sum of consolidated (i) interest
expense, (ii) operating lease expense and (iii) current maturities
of Consolidated Funded Debt as reflected in the GAAP financial
statements of NPCI and its Subsidiaries (which maturities shall be
determined as of the last day of the period consisting of four
fiscal quarters for which Fixed Charges are to be determined).
Franchise Agreement means any franchise agreement between
NPCI or any Subsidiary and Pizza Hut, Inc., as such may be amended
or modified from time to time.
Funded Debt shall mean (i) all Indebtedness having a final
maturity of more than one year from the date of incurrence thereof
(or which is renewable or extendable at the option of the obligor
for a period or periods of more than one year from the date of
incurrence), including all payments in respect thereof that are
required to be made within one year from the date of any
determination of Funded Debt, whether or not included in current
liabilities, (ii) all Capitalized Lease Obligations maturing more
than one year after the date as of which the computation was made,
and (iii) all Guaranties which extend for more than one year after
the date of determination.
GAAP means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting
Standards Board, or in such other statements by such other entity
as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the
date of determination.
Guaranties by any Person shall mean all obligations (other
than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person
guaranteeing, or in effect guaranteeing, any Indebtedness,
dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly,
including, without limitation, all obligations incurred through an
agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any property or assets
constituting security therefor, (ii) to advance or supply funds
(x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other balance sheet
condition or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness or obligation, (iii) to
lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor
to make payment of the Indebtedness or obligation, or (iv)
otherwise to assure the owner of the Indebtedness or obligation of
the primary obligor against loss in respect thereof. For the
purposes of all computations made under this Agreement, a Guaranty
in respect of any Indebtedness for borrowed money shall be deemed
to be Indebtedness equal to the principal amount of such
Indebtedness for borrowed money which has been guaranteed, and a
Guaranty in respect of any other obligation or liability or any
dividend shall be deemed to be Indebtedness equal to the maximum
aggregate amount of such obligation, liability or dividend.
Guarantors shall mean, at any time, each Person which is then
a party to the Master Guaranty, which shall be NPCI and each
Subsidiary thereof (other than the Company).
Highest Lawful Rate shall have the meaning set forth in
Section 15.10.
Indebtedness means, without duplication,
(i) any obligation, including, without limitation, any
obligation for borrowed money (and any notes payable and
drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money), which under
GAAP is shown on the balance sheet as a liability (including
any obligation under a Capitalized Lease but excluding
reserves for deferred income taxes and other reserves to the
extent that such reserves do not constitute an obligation)
and reimbursement obligations arising from letters of credit,
(ii) indebtedness which is secured by a Lien on, or
payable out of the proceeds of production from, property
owned by NPCI or any Subsidiary thereof, whether or not the
indebtedness secured thereby shall have been assumed by NPCI
or such Subsidiary,
(iii) guarantees, endorsements (other than
endorsements of negotiable instruments for collection in the
ordinary course of business) and other contingent liabilities
(whether direct or indirect) in connection with the
obligations, stock or dividends of any Person,
(iv) obligations under any contract providing for the
making of loans, advances or capital contributions to any
Person, or for the purchase of any property from any Person,
in each case in order to enable NPCI or any Subsidiary
thereof primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debts, dividends
or expenses of such Person,
(v) obligations under any contract for the purchase of
materials, supplies or other property or services if such
contract (or any related document) requires that payment for
such materials, supplies or other property or services shall
be made regardless of whether or not delivery of such
materials, supplies or other property or services is ever
made or tendered,
(vi) obligations under any contract to rent or lease (as
lessee) any real or personal property if such contract (or
related document) provides that the obligation to make
payments thereunder is absolute and unconditional under
conditions not customarily found in commercial leases then in
general use and requires that the lessee purchase or
otherwise acquire material amounts of securities, assets or
obligations of the lessor,
(vii) obligations under any other contract which, in
economic effect, is substantially equivalent to a guarantee;
all as determined in accordance with GAAP; provided that
Indebtedness shall not include trade accounts payable, accrued
expenses or income taxes payable, each arising in the ordinary
course of business.
Indebtedness to Pro Forma EBITDA Ratio means, as of the last
day of any fiscal quarter, the ratio of (a) all Indebtedness of
NPCI and its Subsidiaries on such day to (b) Pro Forma EBITDA for
the period of four consecutive fiscal quarters ending on such day.
Indemnification Agreements shall mean, collectively, the
Lease Indemnification Agreement and the Liability Assumption
Agreement, as those agreements are defined and identified in the
Acquisition Agreement.
Interbank Rate means, for any Interest Period, the rate per
annum at which Dollar deposits in immediately available funds are
offered to the Administrative Agent two Banking Days prior to the
beginning of such Interest Period by major banks in the interbank
Eurodollar market as at or about 10:00 a.m., Houston time, for
delivery on the first day of such Interest Period, for the number
of days comprised therein and in an amount equal to the amount of
CBT's Eurodollar Loan for such Interest Period.
Interbank Rate (Reserve Adjusted) means a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Interbank Rate = Interbank Rate
(Reserve Adjusted) 1.0-Eurocurrency Reserve Percentage
Interest Period means, with respect to any Eurodollar Loan,
the one month, two month, three month or six month period
commencing on the applicable borrowing date or conversion date of
such Loan or the last day of the prior Interest Period for such
Loan, as the case may be; provided, however, that no Interest
Period shall extend beyond the Termination Date. Each Interest
Period which would otherwise end on a day which is not a Banking
Day shall end on the next succeeding Banking Day unless such next
succeeding Banking Day is the first Banking Day of a calendar
month, in which case it shall end on the next preceding Banking
Day.
Investment means any investment, made in cash or by delivery
of any kind of property or asset, in any Person, whether by
acquisition of shares of stock or similar interest, Indebtedness
or other obligation or security, or by loan, advance or capital
contribution, or otherwise.
Joinder Agreement shall have the meaning set forth in the
Master Guaranty.
LC Exposure means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate amount of all Letter of Credit
disbursements that have not yet been reimbursed by or on behalf of
the Company at such time. The LC Exposure of any Bank at any time
shall be its Percentage of the total LC Exposure at such time.
Letters of Credit shall have the meaning set forth in Section
4.1.
Letter of Credit Application shall have the meaning set forth
in Section 4.2.
Lien means any mortgage, pledge, hypothecation, judgment lien
or similar legal process, title retention lien, or other lien or
security interest, including, without limitation, the interest of
a vendor under any conditional sale or other title retention
agreement and the interest of a lessor under any Capitalized
Lease.
Loan means either a Revolving Loan and/or Swingline Loan, as
the case may be.
Loan Documents means this Agreement, the Notes, any Letter of
Credit Application, the Master Guaranty, each Joinder Agreement
and any and all agreements or instruments now or hereafter
executed and delivered by the Company, any Guarantor or any other
Person guaranteeing, securing or otherwise supporting payment or
performance of the Notes, this Agreement or any other Loan
Document, as they may be modified or amended from time to time in
accordance with the terms and provisions thereof.
Majority Banks means, at any time, those Banks having
Revolving Credit Exposures and unused Commitments representing
more than fifty percent (50%) of the sum of the total Revolving
Credit Exposures and unused Commitments at such time.
Master Guaranty shall mean the Amended and Restated Master
Guaranty executed and delivered pursuant hereto, to be
substantially in the form of Exhibit Q, as amended from time to
time.
Margin means (a) initially, 1.00% and (b) on and after any
date specified below on which the Margin is to be adjusted, the
rate per annum set forth in the table below opposite the
applicable Indebtedness to Pro Forma EBITDA Ratio:
Indebtedness
to
Pro Forma EBITDA Margin
2.75 < x 1.50%
2.50 < x < 2.75 1.25%
2.25 < x < 2.50 1.00%
1.50 < x < 2.25 .75%
x < 1.50 .50%
The Margin shall be adjusted, to the extent applicable, (i) 45
days (or, in the case of the last fiscal quarter of any fiscal
year, 90 days) after the end of each fiscal quarter based on the
Indebtedness to Pro Forma EBITDA Ratio as of the last day of such
fiscal quarter; it being understood that if the Company fails to
deliver the financial statements required by Section 12.1(a) or
12.1(b), as applicable, by the 45th day (or, if applicable, the
90th day) after any fiscal quarter, the Margin shall be 1.50%
until such financial statements are delivered and (ii) upon the
effective date of any acquisition permitted pursuant to Section
12.10(a) based upon the change, if any, in the Indebtedness to Pro
Forma EBITDA Ratio set forth in the certificate delivered in
connection with such acquisition pursuant to Section 12.1(c).
Money Market Rate means for any Swingline Loan the per annum
interest rate which is quoted by the Swingline Lender for such
Swingline Loan at the making thereof.
Note Agreements means the Note Agreements identified in
Exhibit H.
Notes means, collectively, the Revolving Note and the
Swingline Note.
NPCI means NPC International, Inc.
Payment Date means (a) as to any Eurodollar Loan, the last
day of each Interest Period with respect thereto and, if such
Interest Period is in excess of three months, the date that is
three months after the commencement of such Interest Period, and
(b) as to any Reference Rate Loan and any Swingline Loan, the last
day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Percentage means, with respect to any Bank, the percentage of
the total Commitments represented by such Bank's Commitment. If
the Commitments have terminated or expired, the Percentages shall
be determined based upon the Commitments most recently in effect,
giving effect to any assignments.
Permitted Guaranty Debt means (1) Indebtedness evidenced by
the Master Guaranty, (2) Indebtedness evidenced by any guaranty
agreement given by any Guarantor in favor of any holder of any
Indebtedness listed on Exhibit H, and (3) Indebtedness evidenced
by any guaranty agreement given by any Guarantor in favor of any
holder of any Indebtedness of the Company that may be incurred by
the Company pursuant to Section 12.8(e).
Permitted Liens means the following, provided that none of
the following materially adversely affect the financial condition
or business operations of NPCI and its Subsidiaries taken as a
whole:
(1) Liens of taxes, assessments, and governmental
charges not yet payable, or not delinquent and payable
without interest or penalty so long as so payable;
(2) Liens of taxes, assessments, governmental charges
and other Indebtedness, the validity of which are being
contested in good faith by appropriate action diligently
pursued, provided that such proceeding shall suspend the
collection of such taxes, assessments, governmental charges,
or other Indebtedness and no property of NPCI or any
Subsidiary thereof would be in any danger of being forfeited
during the period of such contest;
(3) Liens of employees and laborers for current wages,
not yet due, incidental to current operations or current
construction, and Liens of others for current indebtedness,
not yet due, incidental to current construction, including
maintenance, repair, and alteration; mechanics',
materialmen's, workmen's, repairmen's or carriers' liens, or
other similar Liens arising in the ordinary course of
business, or deposits, Liens, or pledges of personal property
to obtain the release of any such Liens;
(4) oil and gas leases, licenses, privileges, other
leases, releases of damages, easements, restrictions on the
use of real property, zoning laws and ordinances, rights-of-
way, minor irregularities in title and other similar
encumbrances (including the right of vendors to occupy and
use real property previously sold to NPCI or any Subsidiary
thereof not immediately required by NPCI or any Subsidiary
thereof for use in its business), not in any case impairing
the use by NPCI or any Subsidiary thereof in its business of
the property affected thereby;
(5) in the case of easements and right-of-way grants
from governmental bodies, the rights of the public;
(6) Liens existing prior to the time of acquisition
upon any real or personal property acquired by NPCI or any
Subsidiary thereof through purchase, merger, consolidation,
or otherwise, whether or not assumed by NPCI or any
Subsidiary thereof;
(7) Liens in connection with the acquisition of
property after the date hereof by way of purchase money
mortgage, conditional sale or other title retention
agreement, Capitalized Lease or other deferred payment
contract, and attaching only to the property being acquired,
if the Indebtedness secured thereby does not exceed 75% (100%
in the case of a Capitalized Lease) of the lesser of cost or
fair market value of such property at the time of acquisition
thereof;
(8) deposits, Liens, or pledges of personal property or
of securities to secure payments of workers' compensation,
unemployment insurance, old age pensions or other Social
Security, or to secure the performance of bids, tenders,
contracts (other than contracts for the payment of money), or
leases to which NPCI or any Subsidiary thereof is a party, or
to secure public or statutory obligations of NPCI or any
Subsidiary thereof, or deposits of cash or United States
government obligations to secure or in lieu of surety, stay
or appeal bonds to which NPCI or any Subsidiary thereof is a
party, or pledges, Liens, or deposits for similar purposes in
the ordinary course of business;
(9) Liens based on workers' compensation claims which
are not due and payable, or the validity of which is being
contested in good faith; and
(10) minor discrepancies and encroachments that might be
disclosed by an accurate survey.
Should any of the preceding Permitted Liens occur, the Banks may
reasonably request, as to all the preceding matters referred to in
paragraphs (1), (2), (3), (7), (8) and (9) above, that adequate
reserves be set aside and maintained by NPCI or any Subsidiary
with respect thereto.
Person means an individual, partnership, corporation, trust,
joint venture, joint stock company, association, unincorporated
organization, government or agency or political subdivision
thereof, or other entity.
Pizza Hut, Inc. means Pizza Hut, Inc., a Delaware
corporation.
Plan means a "pension plan," as such term is defined in
ERISA, established or maintained by NPCI or any ERISA Affiliate or
as to which NPCI or any ERISA Affiliate contributes or is a member
or otherwise may have any liability.
Pro Forma EBITDA means EBITDA provided, however, that for the
purpose of calculating Pro Forma EBITDA with respect to any Person
acquired pursuant to Section 12.10(a) (the "Acquisition Target"),
EBITDA of the Acquisition Target for each full fiscal quarter
included in the applicable Computation Period prior to such
Acquisition (including the fiscal quarter during which it was
acquired) shall be included and adjusted for tangible operational
changes due to field expense differentials, royalty payments to be
made to Pizza Hut, Inc., contractual rent payments on real estate
and equipment and general and administrative cost differences, all
as set forth in the most recent certificate delivered pursuant to
Section 12.1(c).
Reference Rate Loan means any Revolving Loan which bears
interest at or by reference to the Alternate Base Rate.
Reportable Event has the meaning given to such term in ERISA.
Responsible Officer means the Chief Operating Officer, the
Chief Financial Officer or the Chief Accounting Officer.
Restricted Indebtedness means Indebtedness of the Company or
any Guarantor, the payment, prepayment, redemption, repurchase or
defeasance of which is restricted under Section 12.17.
Revolving Credit Exposure means, with respect to any Bank at
any time, the sum of the outstanding principal amount of such
Bank's Revolving Loans and its LC Exposure and Swingline Exposure
at such time.
Revolving Loan means a Loan made pursuant to Section 2.1.
Revolving Note means the Revolving Note referred to in
Section 3.
Romacorp, Inc. means Romacorp, Inc., a Delaware corporation.
Sharing Agreement shall mean the Sharing Agreement executed
and delivered as of May 8, 1997, substantially in the form of
Exhibit R attached hereto, as amended from time to time.
Subsidiary means any Person which is directly or indirectly
controlled by NPCI or its other Subsidiaries or of which or in
which NPCI or its other Subsidiaries at any time own directly or
indirectly 50% or more of (i) the combined voting power of all
classes of stock having general voting power under ordinary
circumstances to elect a majority of the board of directors of
such Person, if it is a corporation, (ii) the capital interest or
profits interest of such Person, if it is a partnership, joint
venture or similar entity, or (iii) the beneficial interest of
such Person, if it is a trust, association or other unincorporated
organization.
Supermajority Banks means, at any time, those Banks having
Revolving Credit Exposures and unused Commitments representing at
least sixty-seven percent (67%) of the sum of the total Revolving
Credit Exposures and unused Commitments at such time.
Swingline Exposure means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time.
The Swingline Exposure of any Bank at any time shall be its
Percentage of the total Swingline Exposure at such time.
Swingline Lender means CBT.
Swingline Loan means a Loan made pursuant to Section 5.
Swingline Maturity Date means, for any Swingline Loan, the
date that is one (1) to thirty (30) days from the date of such
Loan as selected by the Company in the notice of borrowing, but
not later than the Termination Date.
Swingline Note means the Note referred to in Section 5(c).
Synthetic Purchase Agreement means any swap, derivative or
other agreement or combination of agreements pursuant to which the
Company or a Guarantor is or may become obligated to make (i) any
payment in connection with a purchase by any third party from a
Person other than the Company or a Guarantor of any Equity
Interest or Restricted Indebtedness or (ii) any payment (other
than on account of a permitted purchase by it of any Equity
Interest or any Restricted Indebtedness) the amount of which is
determined by reference to the price or value at any time of any
Equity Interest or Restricted Indebtedness; provided that no
phantom stock or similar plan providing for payments only to
current or former directors, officers or employees of the Company
or the Guarantor (or to their heirs or estates) shall be deemed to
be a Synthetic Purchase Agreement.
Termination Date means June 20, 2003, as such date may from
time to time be extended in accordance with Section 2.5, or such
earlier date as may be fixed by the Company on at least thirty
(30) Banking Days' written notice to the Administrative Agent and
the Banks.
Termination Event with respect to any Plan means (i) the
institution by NPCI, the PBGC or any other Person of steps to
terminate such Plan, (ii) the occurrence of a Reportable Event
with respect to such Plan which the Administrative Agent
reasonably believes may be a basis for the PBGC to institute steps
to terminate such Plan, or (iii) the withdrawal from such Plan (or
deemed withdrawal under section 4062(f) of ERISA) by NPCI or any
ERISA Affiliate if NPCI or such ERISA Affiliate is a "substantial
employer" within the meaning of section 4063 of ERISA.
Unmatured Event of Default means any event or condition
which, with the lapse of time or giving of notice to the Company
or both, would constitute an Event of Default.
Value shall mean, with respect to any asset at any date of
determination, the greater of such asset's book or fair market
value as of the date of determination, with "book value" being the
value of such asset as would appear immediately prior to such
determination on a balance sheet of the owner of such asset
prepared in accordance with GAAP.
1.2 Other Definitional Provisions. Unless otherwise defined
or the context otherwise requires, all financial and accounting
terms used herein or in any certificate or other document made or
delivered pursuant hereto shall be defined in accordance with
GAAP. Unless otherwise defined therein, all terms defined in this
Agreement shall have the defined meanings when used in the Note or
in any certificate or other document made or delivered pursuant
hereto.
1.3 Interpretation of Agreement. A Section, an Exhibit or a
Schedule is, unless otherwise stated, a reference to a section
hereof, an exhibit hereto or a schedule hereto, as the case may
be. Section captions used in this Agreement are for convenience
only, and shall not affect the construction of this Agreement.
The words "hereof," "herein," "hereto" and "hereunder" and words
of similar purport when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
1.4 Complaince with Financial Restrictions. Complaince with
each of the financial ratios and restrictions contained in Section
12 shall, except as otherwise provided herein, be determined in
accordance with GAAP consistently followed.
1.5 Accounting Principles. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP consistent with those applied in the preparation of the
audited financial statements referred to in Section 12.1 hereof.
All financial information delivered to the Administrative Agent
pursuant to Section 12.1 hereof shall be prepared in accordance
with GAAP applied on a basis consistent with those reflected by
the initial financial statements delivered to the Administrative
Agent pursuant to Section 11.5, except (i) where such principles
are inconsistent with the requirements of this Agreement and (ii)
for those changes with which the independent certified public
accountants referred to in Section 12.1(a) hereof concur in
rendering unqualified certificates as to financial statements.
2. COMMITMENTS OF THE BANKS TO MAKE REVOLVING LOANS; BORROWING
PROCEDURES OF REVOLVING LOANS.
2.1 Commitments. (a) Subject to the terms and conditions of
this Agreement, each Bank, severally but not jointly, agrees to
make loans (collectively the "Revolving Loans" and individually
each a "Revolving Loan") to the Company from time to time from the
date hereof to, but not including, the Termination Date, in an
aggregate principal amount that will not result in either or both
(i) such Bank's Revolving Credit Exposure exceeding such Bank's
Commitment or (ii) the sum of the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company
may borrow, prepay and reborrow Revolving Loans. Each Revolving
Loan shall be made as part of a borrowing consisting of Revolving
Loans made by the Banks on a pro-rata basis according to each
Bank's Percentage. The failure of any Bank to make any Revolving
Loan required to be made by it shall not relieve any other Bank of
its obligationshereunder.
(b) The Company may seek one or more financial
institutions to make a commitment or commitments of Revolving
Loans in the aggregate amount of $20,000,000 (the "Commitment
Increase"). For purposes of the foregoing, the Administrative
Agent may from time to time (i) admit additional Banks under this
Agreement (each an "Additional Bank") or (ii) at the request of
any Bank, increase the Commitment of such Bank (each an
"Increasing Bank"), provided that (A) any Additional Bank shall be
eligible to be a Bank under this Agreement and admission of such
Additional Bank as a party to this Agreement shall have been
consented to by the Administrative Agent and the Company; (B)
after giving effect to the Commitment Increase the total
Commitments shall not exceed $200,000,000; (C) the Commitment
percentages and pro rata shares of the Banks shall be adjusted
accordingly; (D) none of the Banks shall have any obligation to
increase its Commitment; and (E) neither the Administrative Agent,
the Company, any Bank or any of their respective Affiliates shall
have any obligation to find or arrange for any Additional Bank.
2.2 Loan Options. Each Revolving Loan shall be either a
Reference Rate Loan or a Eurodollar Loan, except as otherwise
provided herein. Any combination of types of Revolving Loans may
be outstanding at the same time; provided, however, that the
Company may not have more than ten borrowings of Eurodollar Loans
outstanding at the same time.
2.3 Borrowing Procedure of Revolving Loans; Funding of
Borrowings of Revolving Loans.
(a) Subject to the terms of this Agreement, the Company
shall give the Administrative Agent (i) at least three (3)
Banking Days' prior notice of each proposed borrowing of
Eurodollar Loans not later than 10:00 a.m. Houston time on
the date of such notice, and (ii) at least one Banking Day's
prior notice of each proposed borrowing of Reference Rate
Loans not later than 10:00 a.m. Houston time on the date of
such notice. Each notice shall be by telephone (promptly
confirmed in writing in the form of Exhibit K hereto) and
shall specify (i) the type of Loans requested, (ii) in the
case of Eurodollar Loans, the initial Interest Period
therefor, (iii) the borrowing date, which shall be a Banking
Day and (iv) the amount of Loans requested. Each such notice
shall be irrevocable.
(b) Each borrowing of Reference Rate Loans shall be in
a minimum amount of $100,000 or an integral multiple thereof;
provided that a Reference Rate Loan may be in an aggregate
amount that is equal to the entire unused balance of the
Commitments or that is required to finance the reimbursement
of a Letter of Credit disbursement as contemplated in Section
4.4. Each borrowing of Eurodollar Loans shall be in a
minimum amount of $500,000 or an integral multiple thereof.
(c) Promptly following receipt of a notice of borrowing
in accordance with this Section, the Administrative Agent
shall advise each Bank thereof. Not later than 12:30 p.m.,
Houston time, on the date of a proposed borrowing of a
Revolving Loan, each Bank shall provide the Administrative
Agent at its principal office in Houston with immediately
available funds covering such Bank's ratable share (if any)
of such borrowing. The Administrative Agent, on behalf of
the Banks, will pay to the Company, by crediting its
commercial demand deposit account at CBT, the amount of each
Revolving Loan on the date designated in the notice of
borrowing upon receipt of the documents required in Section 9
and, if applicable, Section 10, with respect to such
Revolving Loan.
(d) Unless the Administrative Agent shall have received
notice from a Bank prior to the proposed date of any
borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such borrowing, the
Administrative Agent may assume that such Bank has made such
share available on such date in accordance with paragraph (c)
of this Section and may, in reliance upon such assumption,
make available to the Company a corresponding amount. In
such event, if a Bank has not in fact made its share of the
applicable borrowing available to the Administrative Agent,
then the applicable Bank and the Company severally agree to
pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the
Company to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Bank, the
greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in
the case of the Company, the interest rate applicable to
Reference Rate Loans. If such Bank pays such amount to the
Administrative Agent, then such amount shall constitute such
Bank's Revolving Loan included in such borrowing.
2.4 Continuation and/or Conversion of Revolving Loans. The
Company may elect (i) to continue any outstanding Eurodollar Loan
from the current Interest Period of such Revolving Loan into a
subsequent Interest Period to begin on the last day of such
current Interest Period, or (ii) to convert any outstanding
Reference Rate Loan into a Eurodollar Loan or, on the last day of
the current Interest Period, to convert one type of Revolving Loan
into another, in each case by giving at least three (3) Banking
Days' prior telephonic notice not later than 10:00 a.m., Houston
time, on the date of such notice (promptly confirmed in writing in
the form of Exhibit L hereto) to the Administrative Agent (which
shall promptly advise each Bank thereof) of such continuation or
conversion, specifying the date, amount and the Interest Period,
if applicable. Absent notice of continuation or conversion, each
Eurodollar Loan shall automatically convert into a Reference Rate
Loan on the last day of the current Interest Period for such
Revolving Loan, unless paid in full on such last day. No
Revolving Loan shall be converted into a Eurodollar Loan and no
Eurodollar Loan shall be continued less than 30 days before the
Termination Date or at any time that an Event of Default or an
Unmatured Event of Default exists.
2.5 Extension of the Termination Date.
(a) At least 60 but not more than 90 days before any
anniversary of the Effective Date, the Company may, by
delivery of a written request to the Administrative Agent in
the form of Exhibit B, request that each Bank agree to extend
the then-scheduled Termination Date by one (1) year.
(b) The Administrative Agent shall, upon receipt of any
such extension request, promptly notify each Bank thereof,
and request that each Bank promptly advise the Administrative
Agent of its approval or rejection of such request.
(c) Upon receipt of such notification from the
Administrative Agent, each Bank may, in its sole discretion,
agree to extend for one (1) year, or decline to extend, the
Termination Date, and each Bank shall, within 30 days of
receipt of the notice described in clause (b), notify the
Administrative Agent of its approval or denial of such
request. If any Bank does not so notify the Administrative
Agent, such Bank shall be deemed to have denied such
extension request. The Administrative Agent shall, no later
than 30 days following its receipt of any extension request
from the Company, notify the Company as to the Banks which
have approved or denied such request.
(d) If all of the Banks approve any such request, the
Termination Date shall be extended to the date which is one
(1) year after the Termination Date in effect immediately
prior to such extension. If fewer than all of the Banks
approve any such request, the Termination Date shall not be
extended.
3. NOTE EVIDENCING REVOLVING LOANS.
3.1 Reference Rate Loans; Eurodollar Loans. The Reference
Rate Loans and Eurodollar Loans of all Banks shall be evidenced by
the Company's promissory note (the "Revolving Note") in the form
of Exhibit A-1, with appropriate insertions, which Note shall (i)
be dated the Effective Date (or such other date satisfactory to
the Administrative Agent), (ii) be made payable to the order of
the Administrative Agent for the account of the Banks ratably in
accordance with their Percentages, and (iii) mature on the
Termination Date. In the event the aggregate Commitments are
increased pursuant to Section 2.1(b), the Company and the
Administrative Agent shall amend and restate the Revolving Note to
evidence such increased Commitments. The Revolving Note shall be
an amendment and restatement of the Existing Revolving Note.
3.2 Evidence of Revolving Loans. All Revolving Loans made
by the Banks to the Company pursuant to this Agreement and all
payments of principal shall be evidenced by the Administrative
Agent in its records or, at its option, on the schedule attached
to the Revolving Note, which records or schedule(s) shall be
rebuttable presumptive evidence of the subject matter thereof,
provided that the failure of the Administrative Agent to make any
endorsement or other notation, or any error in doing so, shall not
affect the obligations of the Company hereunder or under the
Revolving Note.
4. LETTERS OF CREDIT.
4.1 Issuance, Amendment, Renewal and Extension of Letters of
Credit. Subject to the terms and conditions of this Agreement, the
Commitments may, in addition to the Revolving Loans provided for
in Section 2.1, be utilized, upon the request of the Company, for
the issuance of letters of credit by CBT for the account of the
Company (such letters of credit issued by CBT being hereinafter
collectively referred to as the "Letters of Credit"); provided
that CBT shall have no obligation to issue, amend, renew, or
extend any such Letter of Credit if, after giving effect to such
issuance, amendment, renewal or extension, the aggregate face
amount of all Letters of Credit outstanding at such time would
exceed (i) together with the aggregate outstanding amount of
Revolving Loans and Swingline Loans at such time, the Commitments
at such time, or (ii) $15,000,000.
4.2 Procedure for Issuance, Amendment, Renewal and
Extension. (a) In order to effect the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Company shall deliver to the Administrative
Agent (which delivery may be by facsimile transmission) (i) in the
case of a requested issuance of a Letter of Credit, a letter of
credit application in substantially the form attached hereto as
Exhibit O (the "Letter of Credit Application"), or (ii) in the
case of a requested amendment, renewal or extension of an
outstanding Letter of Credit, a notice requesting the same, in
each case not later than 10:00 a.m., Houston time, two (2)
Business Days prior to the proposed date of issuance, amendment,
renewal or extension of the Letter of Credit. Each Letter of
Credit Application and each such notice shall be duly executed by
a Responsible Officer of the Company, shall be irrevocable and
shall (i) specify the day on which such Letter of Credit is to be
issued, amended, renewed or extended, as the case may be (which
shall be a Business Day), and (ii) set forth calculations
evidencing availability for the Letter of Credit, as required
pursuant to Section 4.1 hereof; provided that, in no event shall
the Letter of Credit have an expiry date on or after a date which
occurs (A) more than twelve (12) months after its date of issuance
(or, in the case of any renewal or extension thereof, after its
date of renewal or extension) or (B) later than ten (10) days
prior to the Termination Date.
(b) Upon receipt of the Letter of Credit Application
(or notice of amendment, renewal or extension, as the case may
be), and satisfaction of the applicable terms and conditions of
this Agreement, and provided that no Unmatured Event of Default or
Event of Default exists, or would, after giving effect to the
issuance, amendment, renewal or extension of the Letter of Credit,
exist, CBT shall issue such Letter of Credit to the beneficiary
specified in the Letter of Credit Application (or execute such
amendment, extension or renewal, as the case may be) no later than
the close of business, in Houston, Texas, on the date so
specified. The Administrative Agent shall provide the Company and
each Bank with a copy of the Letter of Credit which has been
issued, amended, renewed or extended, as the case may be. Each
Letter of Credit shall (i) provide for the payment of drafts
presented for honor thereunder by the beneficiary in accordance
with the terms thereof, when such drafts are accompanied by the
documents described in the Letter of Credit, if any, and (ii) to
the extent not inconsistent with the express terms hereof or the
applicable Letter of Credit Application, be subject to the Uniform
Customs and Practice for Documentary Credits, International
Chamber of Commerce Publication No. 500 (together with any
subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by CBT, the
"UCP"), and shall, as to matters not governed by the UCP, be
governed by, and construed and interpreted in accordance with, the
laws of the State of Texas.
4.3 Purchase of Participations. Upon the issuance date of
each Letter of Credit, CBT shall be deemed, without further action
by any party hereto, to have sold to each other Bank, and each
other Bank shall be deemed, without further action by any party
hereto, to have purchased from CBT, a participation, to the extent
of such Bank's Percentage, in the Letter of Credit, the
obligations thereunder and in the reimbursement obligations of the
Company due in respect of drawings made under the Letter of
Credit. Each Bank acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and
continuance of an Unmatured Event of Default or Event of Default
or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding
or reduction whatsoever. If requested by CBT, the other Banks
will execute any other documents reasonably requested by CBT to
evidence the purchase of such participations, provided that such
documents shall be in form and substance satisfactory to each
Bank. Upon issuance of a Letter of Credit and the purchase of
participations hereunder, in respect of clarification, each Bank
(including CBT) hereby agrees that the principal amount of each
such Bank's interest in the reimbursement obligation of the
Company in respect of such Letter of Credit shall be deemed to be
included in the principal amount which constitutes the numerator
in the applicable calculation of such Bank's Percentage hereunder.
4.4 Presentment and Honor of Letter of Credit. Upon the
presentment of a draft for honor under any Letter of Credit by the
beneficiary thereof which CBT has determined is in compliance with
the conditions for payment thereunder, CBT shall promptly notify
the Company, the Administrative Agent and each Bank of the
intended date of honor of such draft and subject to Section 3
hereof, the amount due and owing in respect of such draft shall
automatically and without any action by the Company be immediately
due and payable by the Company and until paid, shall be deemed to
be a Reference Rate Loan to the Company as of the date of payment
of such draft by CBT, and each Bank shall, notwithstanding any
other provision of this Agreement (including the occurrence and
continuance of an Unmatured Event of Default or an Event of
Default), make available to the Administrative Agent for the
benefit of CBT an amount equal to its Percentage of the presented
draft on the day CBT is required to honor such draft. If such
amount is not in fact made available to the Administrative Agent
by such Bank on such date, such amount shall bear interest at the
lesser of (i) the Federal Funds Rate or (ii) the Highest Lawful
Rate, payable on demand by the Administrative Agent.
4.5 Obligations of the Company Absolute. The Company's
obligation to reimburse CBT for the amount of any draft drawn
under a Letter of Credit shall be absolute, unconditional and
irrevocable and shall be paid immediately to the Administrative
Agent for the account of the Banks upon demand by the
Administrative Agent, and otherwise strictly in accordance with
the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or
other rights which the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit (or
any Person for whom any such beneficiary or any such
transferee may be acting), CBT, any Bank or any other Person,
whether in connection with this Agreement, any other Loan
Document, the transactions contemplated herein or therein or
any unrelated transaction;
(b) any statement or any other document presented under
any Letter of Credit proving to be forged, fraudulent or
invalid in any material respect or any statement therein
being untrue or inaccurate in any respect;
(c) payment by CBT under any Letter of Credit against
presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, provided that such
payment shall not have been the result of gross negligence or
wilful misconduct of CBT; and
(d) any other circumstance or event whatsoever, whether
or not similar to the foregoing.
4.6 Liability of CBT. The Company assumes all risks of the
acts or omissions of the beneficiary and any transferee of each
Letter of Credit with respect to its use of such Letter of Credit
Neither CBT, the Administrative Agent, nor any Bank shall be
liable or responsible for, and the Company hereby indemnifies and
holds CBT, the Administrative Agent and each Bank harmless for:
(a) the use which may be made of any Letter of Credit or for any
acts or omissions of the beneficiary and any transferee thereof
in connection therewith, or (b) the validity or genuineness of
documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any other circumstances
whatsoever in making or failing to make payment, against CBT, the
Administrative Agent or any Bank, except damages determined to
to have been caused by gross negligence or willful misconduct of
CBT in determining whether documents presented under a Letter
of Credit comply with the terms of such Letter of Credit and
here shall have been a wrongful payment as a result thereof (for
which only CBT shall be liable or responsible); provided that, it
is the intention of the Company hereunder to indemnify CBT, the
Administrative Agent and each Bank for its own negligence, other
than negligence constituting gross negligence or willful mis-
conduct. In furtherance and not in limitation of the foregoing,
CBT may accept documents that appear on their face to be in order,
without responsibility for investigation, regardless of any notice
or information to the contrary.
4.7 Provisions of Agreement Control. In the event that any
provision of a Letter of Credit Application is inconsistent, or in
conflict with, any provisions of this Agreement, including
provisions for the rate of interest applicable to draws thereunder,
delivery of collateral or rights of setoff or any representations,
warranties, covenants or any events of default set forth therein,
the provisions of this Agreement shall govern.
5. SWINGLINE LOANS
(a) Subject to the terms and conditions set forth
herein, and provided that no Unmatured Event of Default or Event
of Default exists, or would, after giving effect to such Swingline
Loan, exist, the Swingline Lender agrees to make Swingline Loans
to the Company from time to time from the date hereof to, but not
including, the Termination Date, in an aggregate principal amount
at any time outstanding that will not result in either or both (i)
the aggregate principal amount of outstanding Swingline Loans
exceeding $15,000,000 or (ii) the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall
notify the Administrative Agent of such request by telephone
(promptly confirmed in writing in the form of Exhibit K hereto),
not later than 10:00 a.m., Houston time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day), the
amount of the requested Swingline Loan and the requested Swingline
Maturity Date therefor. Each borrowing of a Swingline Loan shall
be in a minimum amount of $100,000 or an integral multiple
thereof. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Company. The
Swingline Lender shall promptly provide to the Company a quotation
of the interest rate that would be applicable to a borrowing of
Swingline Loans in the amount requested and with a Maturity Date
specified in the notice of borrowing. If such interest rate is
satisfactory to the Company, the Company shall, not later than the
time specified by the Swingline Lender when providing the interest
rate quotation, request that such Swingline Loan be made. The
Swingline Lender shall make each Swingline Loan available to the
Company by means of a credit to the general deposit account of the
Company with the Swingline Lender by 12:30 p.m., Houston time, on
the requested date of such Swingline Loan. The principal amount
of each Swingline Loan shall mature and, shall be payable in full,
on its respective Maturity Date. The Company shall not prepay the
principal of any Swingline Loan without the consent of the
Swingline Lender.
(c) The Swingline Loans shall be evidenced by the
Company's promissory note (the "Swingline Note") in the form of
Exhibit A-2, with appropriate insertions, which Note shall (i) be
dated the Effective Date (or such other date satisfactory to the
Administrative Agent), (ii) be made payable to the order of the
Administrative Agent for the account of the Swingline Bank and
(iii) mature on the Termination Date. The Swingline Note shall be
an amendment and restatement of the Existing Swingline Note.
(d) The Swingline Lender may by written notice given to
the Administrative Agent not later than 10:00 a.m., Houston time,
on any Business Day require the Banks to acquire participations on
such Business Day in all or a portion of the Swingline Loans
outstanding if an Event of Default has occurred and is continuing.
Such notice shall specify the aggregate amount of Swingline Loans
in which Banks will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each
Bank, specifying in such notice such Lender's Percentage of such
Swingline Loan or Loans. Each Bank hereby absolutely and
unconditionally agrees, immediately upon receipt of notice as
provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Lender's Percentage of such
Swingline Loan or Loans. Each Bank acknowledges and agrees that
its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including the
occurrence and continuance of an Unmatured Event of Default or
Event of Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Bank shall
comply with its obligation under this paragraph by wire transfer
of immediately available funds, in the same manner as provided in
Section 2.3 with respect to Loans made by such Bank (and Section
2.3 shall apply, mutatis mutandis, to the payment obligations of
the Banks), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Banks.
The Administrative Agent shall notify the Company of any
participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender
from the Company (or other party on behalf of the Company) in
respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by
the Administrative Agent to the Banks that shall have made their
payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear. The purchase of participations in
a Swingline Loan pursuant to this paragraph shall not relieve the
Company of any default in the payment thereof.
6. INTEREST AND FEES.
6.1 Interest.
(a) Reference Rate Loans. The unpaid principal of the
Reference Rate Loans shall bear interest prior to maturity at
a rate per annum equal to the Alternate Base Rate in effect
from time to time. Prior to maturity interest on each
Reference Rate Loan shall be payable on each Payment Date
therefor and on the Termination Date.
(b) Eurodollar Loans. The unpaid principal of each
Eurodollar Loan shall bear interest prior to maturity at a
rate per annum equal to the Interbank Rate (Reserve Adjusted)
in effect for each Interest Period therefor plus the Margin
from time to time in effect. Interest on each Eurodollar
Loan shall be payable on each Payment Date therefor and on
the Termination Date.
(c) Swingline Loans. The unpaid principal of each
Swingline Loan shall bear interest prior to maturity at the
Money Market Rate applicable to such Loan. Interest on each
Swingline Loan shall be payable on the Payment Date therefor
and on the Termination Date.
(d) Interest After Maturity. Notwithstanding the
foregoing, if any principal of or interest on any Loan or any
fee or other amount payable by the Company hereunder is not
paid when due, whether at stated maturity, by acceleration or
otherwise, such overdue amount shall bear interest, after as
well as before judgment, from and including the date such
amount shall have become due to (but not including) the date
of payment thereof in full, at the rate per annum which is
equal to the greater of (i) 2% in excess of the rate
applicable to the unpaid amount immediately before it became
due or (ii) 2% in excess of the Alternate Base Rate from time
to time in effect. Interest after maturity shall be payable
on demand.
6.2 Commitment Fee. The Company agrees to pay to the Banks
ratably in accordance with their Percentages, a commitment fee,
for the period commencing on March 31, 2000 and ending on the
earlier of (x) the Termination Date and (y) the date of
termination of the Commitments, equal to 0.25% per annum on the
daily average of the unused amount of the Commitments, provided,
however, Swingline Loans which have not been participated by the
Swingline Lender to the Banks are not a use of the Commitments for
purposes of calculating the commitment fee of any Bank other than
the Swingline Lender. The commitment fee paid to the Banks
pursuant to this Section 6.2 shall be payable on the last day of
each March, June, September and December and on the Termination
Date or the date of termination of the Commitments, in each case
for any period then ending for which such commitment fee shall not
have been theretofore paid.
6.3 Letter of Credit Fees. The Company agrees to pay to the
Administrative Agent for account of the Banks a letter of credit
fee for the issuance and maintenance of Letters of Credit in an
amount equal to, the greater of (i) $500 and (ii) the face amount
of such Letters of Credit multiplied by the then applicable
Margin, payable quarterly in arrears on the last Banking Day of
each March, June, September and December during the term of this
Agreement and on the Termination Date.
6.4 Method of Calculating Interest and Fees. Interest on
each Eurodollar Loan (and on any Reference Rate Loan bearing
interest by reference to the Federal Funds Rate) and each
Swingline Loan shall be computed on the basis of a year consisting
of 360 days and paid for actual days elapsed, calculated as to
each Interest Period from and including the first day thereof to
but excluding the last day thereof. Interest on each Reference
Rate Loan (other than any Reference Rate Loan described in the
preceding sentence) shall be calculated on the basis of a 365 day
or 366 day year, as applicable, and paid for actual days elapsed.
The fees payable pursuant to Section 6.2 and 6.3 shall be computed
on the basis of a year consisting of 360 days and paid for actual
days elapsed.
6.5 Administrative Agent's Fee. The Company shall pay the
Administrative Agent the fees separately agreed to between the
Company and the Administrative Agent.
7. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF THE
COMMITMENTS.
7.1 Repayment of Loan. (a) The Company hereby
unconditionally promises to pay (i) to the Administrative Agent
for the account of each Bank the then unpaid principal amount of
each Revolving Loan on the Termination Date to such Loan and (ii)
to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the applicable Swingline Maturity Date.
(b) Unless the Administrative Agent shall have received
notice from the Company prior to the date on which any payment is
due to the Administrative Agent for the account of the Banks or
the Issuing Bank hereunder that the Company will not make such
payment, the Administrative Agent may assume that the Company has
made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute on such date to the
Banks or the Issuing Bank, as the case may be, the amount due. In
such event, if the Company has not in fact made such payment, then
each of the Banks or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Bank or Issuing Bank with
interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(c) If any Bank shall fail to make any payment required
to be made by it pursuant to Section 2.3(d), 4.3, 4.4, 5(d) or
7.1(b) then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of
such Bank to satisfy such Bank's obligations under such Sections
until all such unsatisfied obligations are fully paid
7.2 Place of Payment. All payments hereunder (including
payments with respect to the Notes) shall be made without set-off
or counterclaim and shall be made (i) in the case of Revolving
Loans, to the Administrative Agent, for the account of the Banks
ratably in accordance with their Percentage of the Commitments, in
immediately available funds prior to 12:30 p.m., Houston time, on
the date due at the Administrative Agent's office at ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated
by the Administrative Agent to the Company in writing and (ii) in
the case of Swingline Loans, except as provided in Section 5(d),
to the Swingline Lender, in immediately available funds prior to
12:30 p.m., Houston time, on the date due at the Swingline
Lender's office at ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as may be designated by the Swingline Lender to the
Company in writing. Any payments received after such time shall
be deemed received on the next Banking Day. The Administrative
Agent shall promptly remit in immediately available funds to each
Bank its share of all such payments received by the Administrative
Agent for the account of such Bank. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a
date other than a Banking Day, such payment may be made on the
next succeeding Banking Day (unless, in the case of a payment with
respect to a Eurodollar Loan, such next succeeding Banking Day is
the first Banking Day of a calendar month, in which case such
payment shall be due on the next preceding Banking Day), and such
extension of time shall be included in the computation of interest
or any fees.
7.3 Prepayments. (a) The Company shall have the right at
any time and from time to time to prepay any borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b)
of this Section; provided that the Company shall not have the
right to prepay any Swingline Loan without the prior consent of
the Swingline Lender.
(b) The Company shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar borrowing,
not later than 10:00 a.m., Houston time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of a
Reference Rate borrowing, not later than 10:00 a.m., Houston time,
one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 11:00 a.m.,
Houston time, on the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the
principal amount of each borrowing or portion thereof to be
prepaid. Promptly following receipt of any such notice relating
to a Revolving Borrowing, the Administrative Agent shall advise
the Banks of the contents thereof. Each partial prepayment of any
borrowing shall be in a minimum amount of $100,000 or an integral
multiple thereof. Each prepayment of a Revolving Loan borrowing
shall be applied ratably to the Revolving Loans included in the
prepaid borrowing. Prepayments shall be accompanied by accrued
interest. Any prepayment of a Eurodollar Loan on a day other than
the last day of an Interest Period therefore shall be subject to
Section 8.1.
7.4 Reduction or Termination of Commitments. The Company
may from time to time, upon at least five (5) Banking Days' prior
written or telephonic notice received by the Administrative Agent
(which shall promptly advise each Bank thereof), permanently
reduce the amount of the Commitments (such reduction to be made
among the Banks according to their Percentages) to an amount not
less than the sum of the principal amount of all outstanding Loans
and the outstanding aggregate face amount of the Letters of
Credit. Any such reduction shall be in a minimum amount of
$500,000 or an integral multiple thereof. The Company may at any
time on like notice terminate the Commitments upon payment in full
of the Loans and other liabilities of the Company hereunder. The
Company shall promptly confirm any telephonic notice of reduction
or termination of the Commitments in writing. Each notice
delivered pursuant to this Section 7.4 shall be irrevocable.
Notwithstanding the foregoing, at any time at which a Letter of
Credit has been issued and is outstanding, the Commitments may not
be reduced below an amount equal to the aggregate undrawn face
amount of such Letters of Credit.
7.5 Offset. In addition to and not in limitation of all
rights of offset that any Bank or other holder of any Loan may
have under applicable law, each Bank or other holder of any Loan
shall, upon the occurrence of any Event of Default described in
Section 13.1 or any Unmatured Event of Default described in
Section 13.1(e), have the right to appropriate and apply to the
payment of each Loan any and all balances, credits, deposits,
accounts or moneys of the Company then or thereafter with such
Bank or other holder.
7.6 Proration of Payments. If any Bank or other holder of a
Loan shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on
account of principal of or interest on any Revolving Loan or
participations in Letter of Credit disbursements or Swingline
Loans in excess of its pro rata share of payments and other
recoveries obtained by all Banks or other holders on account of
principal of and interest on Revolving Loans or participations in
Letter of Credit disbursements or Swingline Loans then held by
them, such Bank or other holder shall purchase from the other
Banks or holders such participation in the Revolving Loans or
participations in Letter of Credit disbursements or Swingline
Loans held by them as shall be necessary to cause such purchasing
Bank or other holder to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be
rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Company agrees that the Bank
so purchasing a participation from the other Banks under this
Section 7.6 may exercise all its rights of payment, including the
right of set-off, with respect to such participation as fully as
if such Bank were the direct creditor of the Company in the amount
of such participation.
8. INDEMNIFICATION: EURODOLLAR LOANS
8.1 Indemnity for Funding Losses. The Company will
indemnify each Bank upon demand against any loss or expense which
such Bank may sustain or incur, including, without limitation, any
loss or expense sustained or incurred in obtaining, liquidating or
employing deposits or other funds acquired to effect funding or
maintain a Loan, as a consequence of (i) any failure of the
Company to borrow any Loan on the date specified therefor in the
notice of borrowing with respect to such Loan, (ii) any failure of
the Company to make any payment when due of any amount due
hereunder or under any Note in connection with any Loan, or (iii)
any payment or prepayment of any Eurodollar Loan on a date other
than the last day of the Interest Period for such Loan. The
Company's foregoing obligations shall survive termination of this
Agreement.
8.2 Capital Adequacy. If any Bank shall determine at any
time after the date hereof that the adoption of any law, rule or
regulation regarding capital adequacy, or any change therein or in
the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such
Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) from any such authority,
central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that
which such Bank could have achieved but for such adoption, change
or compliance (taking into consideration such Bank's policies with
respect to capital adequacy), by an amount deemed by such Bank to
be material, then the Company shall pay to such Bank upon demand
such amount or amounts, in addition to the amounts payable under
the other provisions of this Agreement or under the Note, as will
compensate such Bank for such reduction. Determination by such
Bank for purposes of this Section 8.2 of the additional amount or
amounts required to compensate such Bank in respect of the
foregoing shall be conclusive in the absence of demonstrable
error. In determining such amount or amounts, such Bank may use
any reasonable averaging and attribution methods.
8.3 Additional Provisions Relating to Eurodollar Loans.
(a) Increased Cost. If, as a result of any law,
regulation, treaty or directive, or any change therein, or in
the interpretation or application thereof, or compliance by
any Bank with any request or directive (whether or not having
the force of law) from any court or governmental authority,
agency or instrumentality:
(i) the basis of taxation of payments to any Bank of
the principal of or interest on any Eurodollar Loan (other
than taxes imposed on the overall net income of such Bank by
the jurisdiction in which such Bank has its principal office)
is changed; or
(ii) any reserve, special deposit, special assessment,
or similar requirement against assets of, deposits with or
for the account of, or credit extended by any Bank is
imposed, modified or deemed applicable; or
(iii) any other condition affecting this Agreement or
the Eurodollar Loans is imposed on any Bank or the interbank
eurodollar market;
and such Bank determines that, by reason thereof, the cost to
such Bank of making or maintaining any Eurodollar Loan is
increased, or the amount of any sum receivable by such Bank
hereunder in respect of any Eurodollar Loan is reduced;
then, the Company shall pay to such Bank upon demand (which
demand shall be accompanied by a statement setting forth the
basis for the calculation thereof but only to the extent not
theretofore provided to the Company) such additional amount
or amounts as will compensate such Bank for such additional
cost or reduction (provided such amount has not been
compensated for in the calculation of the Eurocurrency
Reserve Percentage). Determinations by such Bank for
purposes of this section of the additional amounts required
to compensate such Bank in respect of the foregoing shall be
conclusive, absent demonstrable error. The provisions of
this Section 8.3(a) shall only be applicable to Eurodollar
Loans which are outstanding on or after the date such Bank
has notified the Company that an event has occurred which
will result in the imposition of a liability on the Company
under this Section 8.3 (a) , it being understood that the
Company may prepay any such Loan without any prepayment fee
or penalty (except as provided in Section 8.1).
(b) Eurodollar Deposits Unavailable or Interest Rate
Unascertainable. If the Company has any Eurodollar Loan
outstanding, or has notified the Administrative Agent of its
intention to incur a Eurodollar Loan as provided herein, then
in the event that prior to any Interest Period any Bank shall
have determined (which determination shall be conclusive and
binding on the parties hereto) that deposits of the necessary
amount for the relevant Interest Period are not available to
such Bank in the interbank Eurodollar market or that, by
reason of circumstances affecting such market, adequate and
reasonable means do not exist for ascertaining the Interbank
Rate applicable to such Interest Period, such Bank shall
promptly give notice of such determination to the Company,
the Administrative Agent and the other Banks, and (i) any
notice of new Eurodollar Loans previously given by the
Company and not yet borrowed shall be deemed a notice to make
Reference Rate Loans and (ii) the Company shall be obligated
either to prepay or to convert any outstanding Eurodollar
Loans to Reference Rate Loans on the last day of the then
current Interest Period with respect thereto, subject to the
provisions of Section 8.1.
(c) Changes in Law Rendering Eurodollar Loans Unlawful.
If at any time due to any new law, treaty or regulation, or
any interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof,
or for any other reason arising subsequent to the date
hereof, it shall become unlawful for any Bank to fund any
Eurodollar Loan which it is committed to make hereunder, the
obligation of such Bank to provide such Loan shall, upon the
happening of such event, forthwith be suspended for the
duration of such illegality. If any such change shall make
it unlawful for such Bank to continue any Eurodollar Loan
previously made by it hereunder, such Bank shall, upon the
happening of such event, notify the Company, the
Administrative Agent and the other Banks thereof in writing
stating the reasons therefor, and the Company shall on the
earlier of (i) the last day of the then current Interest
Period for such Eurodollar Loan or (ii) if required by such
law, regulation or interpretation, on such date as shall be
specified in such notice, either convert such unlawful Loans
to Reference Rate Loans or prepay all such Eurodollar Loans
without any penalty (except as provided in Section 8.1), to
such Bank in full.
(d) Discretion of any Bank as to Manner of Funding.
Subject to the provisions of Section 8.3(e), any Bank shall
be entitled to fund and maintain its funding of all or any
part of its Eurodollar Loans in any manner it elects, it
being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if
such Bank had actually funded and maintained each Eurodollar
Loan through the purchase of deposits having a maturity
corresponding to the maturity of such Eurodollar Loan and
being an interest rate equal to the Interbank Rate. Any Bank
may, if it so elects, fulfill any commitment to make
Eurodollar Loans by causing a foreign branch or affiliate to
make or continue such Eurodollar Loans, provided, however,
that in such event such Loans shall be deemed for the
purposes of this Agreement to have been made by such Bank,
and the obligation of the Company to repay such Loans shall
nevertheless be to such Bank and shall be deemed held by such
Bank, to the extent of such Loans, for the account of such
branch or affiliate.
(e) Mitigation of Circumstances. Each Bank shall
promptly notify the Company and the Administrative Agent of
any event of which it has knowledge which will result in, and
will use reasonable commercial efforts available to it (and
not, in such Bank's good faith judgment, otherwise
disadvantageous to such Bank) to mitigate or avoid, (i) any
obligation by the Company to pay any amount pursuant to
Section 8.3(a) or (ii) the occurrence of any circumstances of
the nature described in Section 8.3(b) or 8.3(c) (and, if any
Bank has given notice of any such event described in clause
(i) or (ii) above and thereafter such event ceases to exist,
such Bank shall promptly so notify the Company and the
Administrative Agent). Without limiting the foregoing, each
Bank will designate a different funding office if such
designation will avoid (or reduce the cost to the Company of)
any event described in clause (i) or (ii) of the preceding
sentence and such designation will not, in such Bank's sole
judgment, be otherwise disadvantageous to such Bank.
9. CONDITIONS PRECEDENT TO ALL LOANS.
The obligation of any Bank to make any Loan or issue any
Letter of Credit is subject to the satisfaction of each of the
following conditions precedent:
9.1 Notice. The Administrative Agent shall have received
timely notice of such Loan or Letter of Credit in accordance with
Section 2.3, Section 4.2 or Section 5(b), as the case may be.
9.2 Default. Before and after giving effect to such Loan or
Letter of Credit, no Event of Default or Unmatured Event of
Default shall have occurred and be continuing.
9.3 Insurance. There shall have been no material change,
or notice of prospective material change (whether such notice
is formal or informal) in the nature, extent, scope or cost of the
insurance policies of NPCI or any Subsidiary listed on Exhibit E
which change would have a material adverse effect on the financial
condition of NPCI and its Subsidiaries taken as a whole or would
significantly adversely affect the ability of the Company or any
Guarantor to perform its respective obligations under this
Agreement or under the Note or any other Loan Document to which it
is a party.
9.4 Warranties. Before and after giving effect to such Loan
or Letter of Credit, the warranties in Section 11 (other than the
warranty in the last sentence of Section 11.5 and in Section
11.10) shall be true and correct as though made on the date of
such Loan or Letter of Credit, except for such changes as are
specifically permitted hereunder.
9.5 Certification. Each request for a Loan (including
without limitation each Swingline Loan) or Letter of Credit shall
be deemed to be a certification that the conditions precedent set
out in Sections 9.2, 9.3 and 9.4 have been satisfied.
10. CONDITIONS PRECEDENT TO EFFECTIVE DATE AND INITIAL LOAN AND
LETTER OF CREDIT THEREON OR THEREAFTER.
The occurrence of the Effective Date and the obligation of
the Banks to make the initial Loan and of CBT to issue the initial
Letter of Credit hereunder on or after the Effective Date is
subject to the satisfaction of the conditions precedent, in
addition to the applicable conditions precedent set forth in
Section 9 above, that the Company shall have delivered to the
Administrative Agent all of the following, each (i) duly executed
and dated the Effective Date or such earlier date as is
satisfactory to the Administrative Agent, (ii) in form and
substance satisfactory to the Administrative Agent, and (iii) in
sufficient number of signed counterparts to provide one for each
Bank (except for the Notes, of which only the originals shall be
signed).
10.1 Notes. The Revolving Note payable to the order of the
Administrative Agent for the account of the Banks ratably in
accordance with their respective Commitments, and the Swingline
Note payable to the order of the Swingline Lender.
10.2 Master Guaranty. The Amended and Restated Master
Guaranty, duly executed by NPCI and each Subsidiary thereof (other
than the Company).
10.3 Resolutions; Consents and Approvals. A copy, duly
certified by the secretary or an assistant secretary of the
Company and each Guarantor, of (i) the resolutions of such
Person's Board of Directors authorizing or ratifying the
execution, delivery and performance of the Loan Documents to which
it is a party and its execution, delivery and performance of the
Sharing Agreement, (ii) all documents evidencing other necessary
corporate action with respect to the Loan Documents to which it is
a party and the Sharing Agreement, and (iii) all approvals or
consents, if any, with respect to the Loan Documents to which it
is a party and the Sharing Agreement.
10.4 Incumbency. A certificate of the secretary or an
assistant secretary of the Company and each Guarantor certifying
the names of such Person's officers authorized to sign the Loan
Documents to which it is a party and the Sharing Agreement,
together with the true signatures of such officers.
10.5 Opinion. An opinion of ▇▇▇▇▇▇▇, Mag & Fizzell, P.C.,
counsel to the Company and each Guarantor addressed to the
Administrative Agent and the Banks in substantially the form of
Exhibit J.
10.6 Officer's Certificate. A certificate of a Responsible
Officer certifying to the Administrative Agent as to a true,
correct and complete attached copies of the Note Agreements,
together with all amendments thereto.
10.7 General. All other documents which are provided for
hereunder or which the Banks may reasonably request.
11. REPRESENATIONS AND WARRANTIES.
To induce the Banks to grant the Commitments and to make the
Loans and to induce CBT to issue the Letters of Credit, the
Company represents and warrants that:
11.1 Existence. The Company and each corporate Guarantor are
corporations duly organized, validly existing and in good standing
under the laws of the states of their respective incorporation.
All of the other Guarantors, if any, are entities duly organized,
validly existing and in good standing under the laws of the
jurisdictions of their respective organization. The Company and
all of the Guarantors are in good standing and are duly qualified
to do business in each state where, because of the nature of their
respective activities or properties, such qualification is
necessary.
11.2 Authorization. The Company and each Guarantor is duly
authorized to execute and deliver the Loan Documents to which it
is a party and is and will continue to be duly authorized to
perform its respective obligations under the Loan Documents to
which it is a party. The Company is and will continue to be duly
authorized to borrow monies hereunder. The execution, delivery
and performance by the Company and each Guarantor and the
borrowings hereunder do not and will not require any consent or
approval of, registration or filing with, or any other action by,
any governmental agency or authority.
11.3 No Conflicts. The execution, delivery and performance
by the Company and each Guarantor of the Loan Documents to which
it is a party (a) do not and will not conflict with or violate (i)
any provision of law applicable to such Person, (ii) the charter
or by-laws or other organizational documents of such Person, (iii)
any agreement binding upon such Person, or give rise to a right
thereunder to require any payment to be made by any such Person,
or (iv) any court or administrative order or decree applicable to
such Person and (b) do not and will not require, or result in, the
creation or imposition of any Lien on any asset of NPCI or any of
its Subsidiaries.
11.4 Validity and Binding Effect. When duly executed and
delivered, the Loan Documents to which it is a party will be,
legal, valid and binding obligations of the Company and the
Guarantors, enforceable against such Person in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights and by
general principles of equity limiting the availability of
equitable remedies.
11.5 Financial Statements. NPCI's audited consolidated
financial statement as at March 30, 1999 and NPCI's Quarterly
Report on Form 10-Q dated December 28, 1999 and filed with the
Securities and Exchange Commission, copies of which have been
furnished by NPCI to the Administrative Agent, and which the
Administrative Agent has furnished to each Bank, have been
prepared in conformity with generally accepted accounting
principles applied on a basis consistent with that of the
preceding fiscal year end period and present fairly the financial
condition of NPCI and its Subsidiaries as at such dates and the
results of their operations for the periods then ended, subject
(in the case of the interim financial statement) to year-end audit
adjustments. Since December 28, 1999 there has been no material
adverse change in the financial condition, assets, liabilities,
business operations, management or prospects of NPCI and its
Subsidiaries taken as a whole.
11.6 Litigations. No claims, litigation, arbitration
proceedings or governmental proceedings are pending or threatened
against or are affecting the Company or any of the Guarantors, (i)
the results of which might materially and adversely affect the
financial condition, assets, liabilities, business operations,
management or prospects of the Company, or the Company and the
Guarantors taken as a whole, or (ii) that involve this Agreement,
except those referred to in a schedule furnished to each Bank
contemporaneously herewith and attached hereto as Exhibit C. Other
than any liability incident to such claims, litigation or
proceedings or provided for or disclosed in the financial
statements referred to in Section 11.5, neither the Company nor
any of the Guarantors has any contingent liabilities which are
material to the Company, or to the Company and the Guarantors
taken as a whole.
11.7 Taxes. Each of the Company and the Guarantors has filed
all tax returns, to the best of its knowledge, which are required
to have been filed and has paid, or made adequate provisions for
the payment of all material taxes, assessments and other
governmental charges or levies imposed upon it, its income or any
of its properties, franchises or assets which are due and payable,
except such taxes, assessments and other governmental charges or
levies, if any, as are being contested in good faith and by
appropriate proceedings and as to which such reserves or other
appropriate provisions as may be required by GAAP have been
maintained.
11.8 Liens. None of the assets of the Company or any of the
Guarantors is subject to any Lien, except for (a) Permitted
Liens, (b) Liens disclosed in the financial statements referred to
in Section 11.5; and (c) Liens listed on Exhibit D.
11.9 No Default. Neither the Company nor any of the
Guarantors is in default under any agreement or instrument to
which the Company or any Guarantors is a party or by which any of
their respective properties or assets is bound or affected, which
default might materially and adversely affect the financial
condition, assets, liabilities, business operations, management or
prospects of the Company, or the Company and the Guarantors taken
as a whole. No Event of Default or Unmatured Event of Default has
occurred and is continuing.
11.10 Insurance. The schedule that summarizes the
property and casualty insurance program carried by the Company and
the Guarantors (Exhibit E attached hereto) is complete and
accurate in all material aspects. This summary includes the
insurer's(s') name(s), policy numbers(s), expiration date(s),
amount(s) of coverage, type(s) of coverage, the annual premium(s),
exclusions, deductibles and self-insured retention, and describes
any other self-insurance or risk assumption agreed to by the
Company or any Guarantors or imposed upon the Company or any
Guarantors by any such insurer.
11.11 Subsidiaries. NPCI has no Subsidiaries except as
listed on Exhibit F (as updated from time to time pursuant to
Section 12.1(f)). NPCI and its Subsidiaries own the percentage of
its Subsidiaries as set forth on Exhibit F.
11.12 Partnerships. Neither NPCI nor any of its
Subsidiaries is a partner or joint venturer in any partnership or
joint venture other than the partnerships and joint ventures
listed on Exhibit G (as updated from time to time pursuant to
Section 12.1(f)).
11.13 Regulation U. (i) Neither NPCI nor any Subsidiary
thereof is engaged in the business of purchasing or selling margin
stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) or extending credit to others for the
purpose of purchasing or carrying margin stock, (ii) no part of
the proceeds of any Loan will be used to purchase or carry
directly or indirectly any margin stock, and (iii) no Loan will be
used for any purpose which would violate any of the margin
regulations of said Board of Governors.
11.14 Compliance. The Company and the Guarantors are in
material compliance with all statutes and governmental rules and
regulations applicable to them.
11.15 Pension Plans. Each Plan complies in all material
respects with all material applicable statutes and governmental
rules and regulations, and (i) no Reportable Event has occurred
and is continuing with respect to any Plan, (ii) neither NPCI nor
any ERISA Affiliate has withdrawn from any Plan or instituted
steps to do so, and (iii) no steps have been instituted to
terminate any Plan. No condition exists or event or transaction
has occurred in connection with any Plan which could result in the
incurrence by NPCI or any ERISA Affiliate of any material
liability, fine or penalty.
11.16 Properties. (a) Each of NPCI and its Subsidiaries
has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor
defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties
for their intended purposes.
(b) Each of NPCI and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the
use thereof by NPCI and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be
expected to result in a material adverse effect on the financial
condition, assets, liabilities, business operations, management or
prospects of the Company, or the Company and the Guarantors taken
as a whole.
11.17 Investment and Holding Company Status. Neither NPCI
nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject
to regulation under, the Public Utility Holding Company Act of
1935.
11.18 Disclosure. The Company has disclosed to the Banks all
agreements, instruments and corporate or other restrictions to
which it or any of the Guarantors is subject, and all other
matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a material adverse effect on
the financial condition, assets, liabilities, business operations,
management or prospects of the Company, or the Company and the
Guarantors taken as a whole. No reports, financial statements,
certificates or other information furnished by or on behalf of the
Company to the Administrative Agent or any Bank in connection with
the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial
information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be
reasonable at the time.
12. COMPANY"S COVENANTS.
From the date of this Agreement and thereafter until the
expiration or termination of the Commitments and until the Notes
and other liabilities of the Company hereunder are paid in full,
the Company agrees that it will:
12.1 Financial Statements and Other Information. Furnish to
each Bank:
(a) within ninety-five (95) days after each fiscal year
of NPCI, a copy of the annual audit and Form 10-K report of
NPCI and its Subsidiaries prepared on a consolidated and
consolidating basis in conformity with GAAP and bearing the
unqualified opinion of an independent certified public
accountant of recognized national standing selected by NPCI
whose opinion shall be in scope and substance satisfactory to
the Banks;
(b) within fifty (50) days after each quarter (except
the last quarter) of each fiscal year of NPCI, a copy of
NPCI's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission and of the unaudited
financial statement of NPCI and its Subsidiaries prepared in
the same manner as the audit report referred to in preceding
clause (a) signed by NPCI's chairman, president or chief
financial officer and consisting of at least a balance sheet
as at the close of such quarter, and statements of income and
cash flows for such quarter and for the period from the
beginning of such fiscal year to the close of such quarter;
(c) together with the financial statements furnished by
the Company under preceding clauses (a) and (b) and in
connection with any acquisition pursuant to Section 12.10(a),
a certificate of a Responsible Officer of the Company in the
form attached hereto as Exhibit M, dated the date of such
annual audit report or such quarterly financial statement or
acquisition, as the case may be, to the effect that no Event
of Default or Unmatured Event of Default has occurred and is
continuing or, if there is any such event, describing it and
the steps, if any, being taken to cure it, and containing a
computation of, and showing compliance with, each of the
financial ratios and restrictions contained in this Section
12;
(d) copies of each filing and report made by NPCI or
any Subsidiary thereof with or to any securities exchange or
the Securities and Exchange Commission and of each
communication from NPCI or any Subsidiary thereof to
stockholders generally, promptly upon the filing or making
thereof;
(e) promptly from time to time, a written report of any
change in the list of the NPCI's Subsidiaries set forth on
Exhibit F or in the list of partnerships and joint ventures
set forth on Exhibit G;
(f) promptly upon receipt thereof, a copy of any
annual, interim or special audit made by independent
accountants, any management control letter issued by them or
any other report submitted to the Company's Board of
Directors or NPCI's Board of Directors by the independent
accountants; and
(g) promptly from time to time, such other information
as the Banks may reasonably request
12.2 Books, Records and Inspection. Maintain and cause each
Guarantor to maintain, complete and accurate books and records in
which full and correct entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its
respective business and activities; permit, and cause each
Guarantor to permit, any authorized representative of any of the
Banks to visit and inspect any of the properties of the Company or
any of the Guarantors, upon reasonable prior notice and during
regular business hours, including any books and records (and to
make extracts therefrom), and to discuss its affairs and finances
as often as the Banks may reasonably request.
12.3 Conduct of Business. Maintain and cause each Guarantor
to maintain its respective existence and use its best efforts to
maintain in full force and effect all franchises (including but
not limited to all Pizza Hut, Inc. franchise agreements and
licenses), licenses, leases, contracts and other authority and
rights which are material to the Company, or to the Company and
the Guarantors, taken as a whole, provided that the foregoing
shall not prohibit any merger or consolidation permitted under
Section 12.10.
12.4 Taxes. Pay, and cause each Guarantor to pay, when due,
all taxes, assessments and other governmental charges or levies
imposed upon it, its income or any of its properties, franchises
or assets, unless and only to the extent that the Company or such
Guarantor, as the case may be, is contesting such taxes,
assessments and other governmental charges or levies in good faith
and by appropriate proceedings and the Company or such Guarantor
has set aside on its books such reserves or other appropriate
provisions therefor as may be required by GAAP.
12.5 Notices.
(a) Event of Default; Pension Plans. Immediately upon
learning of the occurrence of any of the following, provide
to each Bank written notice thereof, describing the same and
the steps being taken by the Company or the Subsidiary or the
ERISA Affiliate affected with respect thereto: (i) the
occurrence of an Event of Default or an Unmatured Event of
Default or (ii) the occurrence of a Reportable Event with
respect to any Plan, the institution of any steps by the
Company, any ERISA Affiliate, the PBGC or any other Person to
terminate any Plan, or the institution of any steps by the
Company or any ERISA Affiliate to withdraw from any Plan with
respect to which it is a "substantial employer" within the
meaning of section 4063 of ERISA.
(b) Litigation. Notify each Bank (i) promptly upon
learning thereof, of the institution or existence of any
litigation, arbitration or governmental proceedings which is
material to the Company, or to the Company and the Guarantors
taken as a whole, and (ii) of any judgment or decree entered
against the Company or any Guarantor within five business
days after such entry if the aggregate amount of all
judgments and decrees then outstanding against the Company
and all the Guarantors exceed $1,500,000 after deducting (A)
the amount with respect to which the Company or any Guarantor
is insured and with respect to which the insurer has not
disclaimed liability, and (B) the amount for which the
Company or any Guarantor is otherwise indemnified if the
terms of such indemnification are satisfactory to the Banks.
(c) Indebtedness. Notify each Bank of any Indebtedness
incurred in connection with Liens permitted under Section
12.8(c) if the amount thereof exceeds $1,500,000.
12.6 Pension Plans. Not permit, and not permit any Guarantor
to permit, any condition to exist in connection with any Plan
which might constitute grounds for the PBGC to institute
proceedings to have such Plan terminated or a trustee appointed to
administer such Plan, and not engage in, or permit to exist or
occur, or permit any of the Guarantors to engage in, or permit to
exist or occur, any other condition, event or transaction with
respect to any Plan which could result in the incurrence by the
Company or any of the Guarantors of any material liability, fine
or penalty.
12.7 Expenses. Whether or not any Loan is made hereunder,
pay the Banks upon demand for all reasonable expenses, including
reasonable fees of attorneys for the Administrative Agent and the
Banks (who may be employees of the Administrative Agent and the
Banks) and other legal expenses and costs of collection, incurred
by (i) the Administrative Agent in connection with the
preparation, negotiation, execution and amendment of, and waivers
to, this Agreement, the Notes and any document required to be
furnished herewith, and (ii) the Administrative Agent and the
Banks in connection with the enforcement of the Company's
obligations hereunder or under the Notes. The Company also agrees
to (x) indemnify and hold the Administrative Agent harmless from
any loss or expense which may arise or be created by the
acceptance of telephonic or other instructions for making Loans or
disbursing the proceeds thereof or issuing Letters of Credit, and
(y) pay, and save the Administrative Agent and the Banks harmless
from all liability for, any stamp or other taxes which may be
payable with respect to the execution or delivery of this
Agreement or the issuance of the Note or any other instrument or
document provided for herein or delivered or to be delivered
hereunder or in connection herewith. The Company's foregoing
obligations shall survive any termination of this Agreement.
12.8 Indebtedness. Not, and not permit any Guarantor to,
create, assume, incur or permit to exist any Indebtedness, except:
(a) Indebtedness to the Administrative Agent and the Banks under
the terms of the Loan Documents; (b) Indebtedness of the Company
having maturities and terms, and which is subordinated to payment
of the Notes in a manner, approved in writing by the Banks; (c)
Indebtedness of the Company or any Guarantor hereafter incurred in
connection with the Liens permitted by paragraph (7) of the
definition of Permitted Liens; (d) Indebtedness outstanding on the
date hereof and listed on Exhibit H, including, in the case of any
Guarantor, any Permitted Guaranty Debt in respect of such
Indebtedness; (e) other unsecured Indebtedness of the Company
(including Indebtedness permitted by Section 12.20) and unsecured
Indebtedness of any Guarantor permitted by Section 12.20, provided
that such Indebtedness is incurred when no Event of Default or
Unmatured Event of Default exists or would result therefrom and
such Indebtedness exists under agreements that contain
representations, warranties, covenants and defaults no more
burdensome to the Company or any Guarantor than those set forth
herein; and (f) Indebtedness of the Company to any Guarantor and
Indebtedness of any Guarantor to the Company or any other
Guarantor provided that such Indebtedness is incurred when no
Event of Default or Unmatured Event of Default exists or would
result therefrom.
12.9 Liens. Not, and not permit any Guarantor to, create,
incur, assume or permit to exist any Lien with respect to any
assets now owned or hereafter acquired, except for Permitted Liens
and Liens referred to in Section 11.8.
12.10 Merger, Purchase and Sale. Not, and not permit any
Guarantor to, be a party to any merger or consolidation; not, and
not permit any Guarantor to, in any one fiscal year, sell,
transfer, convey, lease or otherwise dispose of assets of NPCI and
its Subsidiaries which exceed in the aggregate, for NPCI and its
Subsidiaries taken as a whole, five percent (5%) of the Value of
NPCI's consolidated total assets determined as of the end of the
immediately preceding fiscal year, or purchase or otherwise
acquire all or substantially all the assets of any Person.
Notwithstanding the foregoing:
(a) subject to the next to last sentence of this
Section 12.10 and the prior delivery to the Administrative
Agent of a certificate in the form of Exhibit M giving effect
thereto, the Company or any Subsidiary thereof may acquire
any other franchisee of Pizza Hut, Inc. or Romacorp, Inc.;
(b) any wholly-owned Subsidiary of NPCI (other than the
Company) may merge into NPCI or into or with any other wholly-
owned Subsidiary of NPCI;
(c) any wholly-owned Subsidiary of NPCI (other than the
Company) may be consolidated with any other wholly-owned
Subsidiary thereof so long as immediately thereafter 100% of
the voting stock or other ownership interest of the resulting
Person is owned by NPCI or another wholly-owned Subsidiary of
NPCI;
(d) any Guarantor may sell, transfer, convey, lease or
assign any assets to the Company or to any other Guarantor,
and the Company may sell, transfer, convey, lease or assign
any assets to any Guarantor (provided that the Company may
not sell, transfer, convey, lease or assign any franchises);
and
(e) the Company may sell and leaseback up to
$40,000,000 annually in properties re-imaged within the
preceding 24 months; provided, however, that the Company may
not at any time reduce the number of properties owned in fee
simple to less than 100;
provided, in each of the cases described in the preceding clauses,
that immediately thereafter and after giving effect thereto, no
Event of Default or Unmatured Event of Default shall have occurred
and be continuing. Neither NPCI nor any Subsidiary shall use in
excess of $50,000,000 of borrowings hereunder for any single
acquisition of, or Investment in, any Person or Persons or the
assets of any Person or Persons without the prior written consent
of the Majority Banks. No other provision in this Agreement
(including, without limitation, any provision in this Agreement
relating to restricted investments or transactions with
affiliates) shall prohibit the Company or any Guarantor from
selling, transferring, conveying, leasing, or assigning any assets
(including, without limitation, financial assets) to the extent
such sale, transfer, conveyance, lease or assignment is permitted
under Section 12.10(d).
12.11 Nature of Business. Engage, and cause each
Guarantor to engage, in substantially the same fields of business
as it is engaged in on the date hereof.
12.12 Franchse Rights. Not permit any change,
termination, or loss of its or any Guarantor's rights to operate
as a franchisee of Pizza Hut, Inc., which would have a material
adverse effect on the Company, or on NPCI and its Subsidiaries
taken as a whole.
12.13 Net Worth. Not permit NPCI's Consolidated Net
Worth at any time to be less than the sum of (i) $126,800,000 plus
(ii) an amount equal to fifty percent (50%) of NPCI's Consolidated
Net Earnings (without reduction for any deficit in Consolidated
Net Earnings for any quarterly fiscal period) for the period from
and after March 28, 2000 to and including the date of
determination thereof, computed on a cumulative basis for such
period, minus fifty percent (50%) of the non-cash Facility Action
Charges deduction incurred after March 28, 2000. Such deductions
shall not exceed $3,750,000 on an annual basis.
12.14 Leverage Ratio. Not permit the Indebtedness to Pro
Forma EBITDA Ratio as of the last day of any Computation Period to
exceed 3.00 to 1.00.
12.15 Fixed Charge Coverage. Not permit the ratio of (a)
Pro Forma EBITDA as of the last day of any Computation Period plus
the consolidated operating lease rental expense of NPCI and its
Subsidiaries for such Computation Period to (b) the sum of (i)
consolidated interest expense of NPCI and its Subsidiaries for
such Computation Period, plus (ii) the consolidated operating
lease rental expense of NPCI and its Subsidiaries for such
Computation Period to be less than 1.50 to 1.00 on the last day of
such Computation Period.
For purposes of this Section 12.15, interest expense shall
include, without limitation, implicit interest expenses on
Capitalized Leases
12.16 Insurance. Maintain, and cause each Guarantor to
maintain, insurance to such extent and against such hazards and
liabilities as is commonly maintained by companies similarly
situated, and in any event such types and in such amounts and with
financially sound and reputable insurers of at least the quality
as is described in the certificate furnished pursuant to Section
11.10. The Company agrees to notify each Bank prior to any
material change in or cancellation of any such insurance.
12.17 Restricted Payments. Not, and not permit any
Guarantor to, make any payment on account of the purchase,
redemption, retirement, acquisition, cancellation or termination
of any Equity Interests, declare or pay any dividends thereon
(other than stock dividends), make any distribution to Equity
Interest holders as such, or set aside any funds for any such
purpose, and not, and not permit any Guarantor to, pay, prepay,
purchase, defease or redeem any subordinated Indebtedness of the
Company or any Guarantor, or enter into or be a party to, or make
any payment under, any Synthetic Purchase Agreement, or set aside
any funds for any such purpose, unless, before and after giving
effect to such transaction, (i) no Event of Default or Unmatured
Event of Default has occurred and is continuing and (ii) in the
case of any Synthetic Purchase Agreement, the obligations of the
Company and the Guarantors thereunder are subordinated to the
obligations of the Company and the Guarantors under the Loan
Documents on terms satisfactory to the Banks.
12.18 Leases. Not enter into or permit to exist, or
permit any Guarantor to enter into or permit to exist, any
arrangements for the leasing by it or any of its Subsidiaries, as
lessee, of any real or personal property under leases (other than
Capitalized Leases) if, immediately before and after giving effect
thereto, an Event of Default or Unmatured Event of Default shall
exist or be continuing. For purposes of determining whether the
entering into any lease results in a breach of Section 12.15, the
Company shall make the calculation required under such Section as
of the date such lease is entered into on assumption that the
rental expense that is expected to be incurred during the twelve-
month period following the entering into the lease was incurred
during the twelve-month period ending on the date of such
calculation.
12.19 NCPI's and Subsidiaries' Stock. Not, and not
permit any Guarantor to, (i) purchase or otherwise acquire any
Equity Interests of NPCI, or enter into or be a party to, or make
a payment under, any Synthetic Purchase Agreement with respect
thereto, or set aside funds for such purpose, unless, before and
after giving effect to such transaction, (A) no Event of Default
or Unmatured Event of Default has occurred and is continuing and
(B) in the case of any such Synthetic Purchase Agreement, the
obligations of the Company and the Guarantors thereunder are
subordinated to the obligations of the Company and the Guarantors
under the Loan Documents on terms satisfactory to the Banks, or
(ii) take any action, or permit any Guarantor to take any action,
which will result in a decrease in NPCI's or any Subsidiaries
ownership interest in any Subsidiary (including, without
limitation, the Company).
12.20 Guaranties. Not, and not permit any Guarantor to,
become a guarantor or surety of, or otherwise become or be
responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or
advance any funds, assets, goods or services, or otherwise) with
respect to, any undertaking of any other Person, except for (i)
the endorsement, in the ordinary course of collection, of
instruments payable to it or its order, (ii) as to the Company,
guarantees of obligations which do not exceed $5,000,000.00 in the
aggregate at any one time and (iii) Permitted Guaranty Debt;
provided, however, that in addition to the foregoing, NPCI may
enter into and perform its obligations under the Indemnification
Agreements.
12.21 Investments. Not, and not permit any Guarantor to,
purchase, hold, acquire, make or permit to exist any Investment in
any Person, except for:
(a) Investments in securities with maturities of one
year or less from the date of acquisition issued or fully
guaranteed or insured by the United States of America or any
agency thereof;
(b) Investments in commercial paper maturing in 270
days or less from the date of issuance rated in the highest
grade by a nationally recognized credit rating agency;
(c) Investments in certificates of deposit maturing
within one year from the date of acquisition issued by a bank
or trust company organized under the laws of the United
States or any state thereof having capital, surplus and
undivided profits aggregating at least $100,000,000;
(d) Subject to the last sentence of Section 12.10,
Investments by NPCI or any Subsidiary thereof in other Pizza
Hut, Inc. or Romacorp, Inc. franchisees as long as, before or
after giving effect to such Investment, no Event of Default
or Unmatured Event of Default has occurred which is
continuing;
(e) Investments outstanding on the date hereof and
listed on Exhibit I;
(f) other liquid Investments (except Investments
prohibited under Section 12.10 or 12.20), as selected by the
Company or any Guarantor, not to exceed $5,000,000 in the
aggregate at any one time for the Company and all Guarantors;
and
(g) Investments permitted by Section 12.8(f).
12.22 Subsidiaries. Except as permitted under Section
12.21(d), not, without the Banks' prior written consent, create or
acquire, or permit any Guarantor to create or acquire, any
Subsidiaries in addition to those existing on the date of this
Agreement. The Company shall immediately cause each Subsidiary of
NPCI hereafter created or acquired by NPCI or any Subsidiary
thereof to provide to the Administrative Agent for the benefit of
the Banks the following: (a) a Joinder Agreement, (b) all
documents, agreements and other instruments described in Sections
10.3, 10.4 and 10.5 with respect to such Subsidiary; and (c) all
information regarding the condition (financial or otherwise),
business and operations of such Subsidiary as the Administrative
Agent or any Bank may reasonably request. It is agreed and
understood that the agreement of the Company under this Section
12.22 to cause any Subsidiary of NPCI to provide to the
Administrative Agent for the benefit of the Banks a Joinder
Agreement is a condition precedent to the making of the Loans
pursuant to this Agreement and that the entry into this Agreement
by the Banks constitutes good and adequate consideration for the
provision of such Joinder Agreement.
12.23 Unconditional Purchase Obligation. Not, and not
permit any Guarantor to, enter into or be a party to any contract
for the purchase or lease of materials, supplies or other property
or services if (a) such contract requires that payment be made by
it regardless of whether or not delivery is ever made of such
materials, supplies or other property or services and (b) the
aggregate amount payable over the full remaining terms of all such
contracts exceeds $1,500,000 in the aggregate for the Company and
the Guarantors.
12.24 Other Agreements. Not, and not permit any
Guarantor to, enter into any agreement containing any provision
which would be violated or breached by the Company's or any
Guarantor's performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by such Person
hereunder or in connection herewith.
12.25 Use of Proceeds. Not permit any proceeds of the
Loans to be used, either directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of "purchasing or
carrying any margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System, as amended
from time to time, and furnish to each Bank, upon its request, a
statement in conformity with the requirements of Federal Reserve
Form U-1 (or such other form or forms as may be required by
Regulation U) referred to in Regulation U.
12.26 Restrictive Agreements. Neither the Company, nor
any Guarantor, will, directly or indirectly, enter into, create or
otherwise allow to exist any contract or other consensual
prohibition or restriction on the ability of (A) any Guarantor (i)
to pay dividends or make other distributions or contributions or
advances to the Company, (ii) to repay loans and other
indebtedness owing by it to the Company, (iii) to redeem equity
interests held by it or by Company, or (iv) to transfer any of its
assets to the Company, or (B) the Company or any Guarantor to make
any payments required or permitted under the Loan Documents or
otherwise prohibit or restrict compliance by the Company and the
Guarantors thereunder (unless, with respect to subparts (i)
through (iv), such prohibitions or restrictions are not materially
more burdensome on the Guarantors than the prohibitions and
restrictions contained in this Agreement).
13. Consolidated Fixed Charge Requirement.
The Company covenants that, on the last day of each fiscal
quarter, the ratio of (a) Consolidated Net Income Available for
Fixed Charges to (b) Fixed Charges will be not less than 2.0 to
1.0 for the period consisting of the four (4) consecutive fiscal
quarters ending on the date of such determination.
13.1 Complaince with Laws. The Company will, and will cause
each of the Guarantors to, comply with all laws, rules,
regulations and orders of any governmental authority applicable to
it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected
to result in a material adverse effect on the financial condition,
assets, liabilities, business operations, management or prospects
of the Company, or the Company and the Guarantors taken as a
whole.
13.2 Transactions with Affiliates. The Company will not, and
will not permit any of the Guarantors to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (a)
in the ordinary course of business at prices and on terms and
conditions not less favorable to the Company or such Guarantor
than could be obtained on an arm's-length basis from unrelated
third parties, (b) transactions between or among the Company and
its wholly owned Subsidiaries not involving any other Affiliate
and (c) any Restricted Payment permitted by Section 12.17.
14. EVENTS OF DEFAULT AND REMEDIES.
14.1 Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
(a) Non-Payment. (i) Default in the payment, when due,
of any principal of either Note or any fee hereunder; or (ii)
default, and the continuance thereof for 10 days, in the
payment, when due, of any interest on either Note or any
other amount owing by the Company or any Guarantor to the
Administrative Agent or the Banks pursuant to this Agreement
or any other Loan Document.
(b) Non-Payment of Other Indebtedness. Default in the
payment when due, whether by acceleration or otherwise
(subject to any applicable grace period), of any Indebtedness
of, or guaranteed by, the Company or any Guarantor (other
than the Indebtedness evidenced by the Notes) in excess of
$1,000,000 in the aggregate for NPCI and its Subsidiaries.
(c) Acceleration of Other Indebtedness. Any event or
condition shall occur which (i) results in the acceleration
of the maturity of any Indebtedness in excess (in the
aggregate for NPCI and its Subsidiaries) of $1,000,000 of, or
guaranteed by, the Company or any Guarantor (other than the
Indebtedness evidenced by the Notes) or (ii) enables or
permits the holder or holders of such other Indebtedness or
any trustee or agent for such holders (any required notice of
default having been given and any applicable grace period
having expired) to accelerate the maturity of such other
Indebtedness, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled
maturity.
(d) Other Obligations. Default in the payment when
due, whether by acceleration or otherwise, or in the
performance or observance (subject to any applicable grace
period) of (i) any material obligation or agreement in excess
in the aggregate of $1,000,000 of the Company or any
Guarantor to or with any Bank (other than any obligation or
agreement of the Company or the Guarantors under the Loan
Documents), or (ii) any material obligation or agreement in
excess in the aggregate of $1,000,000 of the Company or any
Guarantor to or with any other Person (other than (x) any
such material obligation or agreement constituting or related
to Indebtedness, (y) accounts payable arising in the ordinary
course of business, and (z) any material obligation or
agreement of any Guarantor to the Company or to any other
Guarantor), except only to the extent that the existence of
any such default is being contested by the Company or such
Guarantor, as the case may be, in good faith and by
appropriate proceedings and the Company or such Guarantor
shall have set aside on its books such reserves or other
appropriate provisions therefor as may be required by GAAP.
(e) Insolvency. The Company or any of the Guarantors
becomes insolvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they mature, or
applies for, consents to, or acquiesces in the appointment of
a trustee, receiver or other custodian for the Company or
such Guarantor or a substantial part of the property of the
Company or such Guarantor, or makes a general assignment for
the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any of the
Guarantors or for a substantial part of the property of the
Company or any of the Guarantors and is not discharged
within 30 days; or any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding,
is instituted by or against the Company or any of the
Guarantors and, if instituted against the Company or any of
the Guarantors, is consented to or acquiesced in by the
Company or such Guarantor or remains for 30 days undismissed;
or any warrant of attachment is issued against any
substantial part of the property of the Company or any of the
Guarantors which is not released within 30 days of service.
(f) Pension Plans. A Termination Event occurs with
respect to any Plan if, at the time such Termination Event
occurs, such Plan's then "vested liabilities" (as defined in
section 3(25) of ERISA) would exceed the then value of such
Plan's assets.
(g) Financial Covenants; Agreements. The Company fails
to perform or observe any agreement contained in Section
12.8, 12.9, 12.10, 12.13, 12.14, 12.15, 12.16, 12.19, 12.20,
12.21, 12.22 or 12.27 and such failure shall not be remedied
within five (5) days after the chairman, president or chief
financial officer of the Company or any Guarantor obtains
actual knowledge thereof; or the Company fails to deliver the
notice required by Section 12.5(a)(i) or fails to perform or
observe Section 12.26; or the Company or any Guarantor fails
to perform or observe any other agreement set forth in this
Agreement or any other Loan Document to which it is a party
(and not constituting an Event of Default under any of the
other subsections of this Section 13.1) and continuance of
such failure for thirty (30) days after the chairman,
president or chief financial officer of the Company or such
Guarantor, as the case may be, obtains actual knowledge
thereof.
(h) Warranty. Any warranty made by the Company or any
Guarantor herein or any other Loan Document to which it is a
party is untrue in any material respect, or any schedule,
statement, report, notice, certificate or other writing
furnished by the Company or any Guarantor to any Bank is
untrue in any material respect on the date as of which the
facts set forth therein are stated or certified, or any
certification made or deemed made by the Company or any
Guarantor to any Bank is untrue in any material respect on or
as of the date made or deemed made.
(i) Litigation. There shall be entered against the
Company or any Guarantor one or more judgments or decrees in
excess of $1,500,000 in the aggregate at any one time
outstanding for NPCI and all its Subsidiaries, excluding
those judgments or decrees (i) that shall have been
outstanding less than 30 calendar days from the entry thereof
or (ii) for and to the extent which the Company or any
Guarantor is insured and with respect to which the insurer
has assumed responsibility in writing or for and to the
extent which the Company or any Guarantor is otherwise
indemnified if the terms of such indemnification are
satisfactory to the Banks.
(j) Franchise Agreement. The Company or any Guarantor
takes any action or fails to take action which results in the
loss of any Franchise Agreement, license or other permit
which would preclude the Company or any Guarantor from
operating such franchise under the name "Pizza Hut", and such
loss materially adversely affects the business operations or
profitability of the Company or such Guarantor.
(k) Pizza Hut, Inc. If (a) Pizza Hut, Inc. applies
for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for itself or a
substantial part of its property, or makes a general
assignment for the benefit of creditors; or, in the absence
of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for Pizza Hut, Inc.
or for a substantial part of its property and is not
discharged within 30 days; or any bankruptcy, reorganization,
debt arrangement or other proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding,
is instituted by or against Pizza Hut, Inc. and, if
instituted against Pizza Hut, Inc., is consented to or
acquiesced in by Pizza Hut, Inc. or remains for 30 days
undismissed; or any warrant of attachment is issued against
any substantial part of the property of Pizza Hut, Inc. which
is not released within 30 days of service; and (b) for the 12-
month period ending on the last day of the fiscal quarter end
which coincides with or immediately precedes the occurrence
of the event described in clause (a), the ratio described in
Section 12.15 is less than 2.5 to 1.0.
(l) Nullity of Loan Documents. Except pursuant to the
express terms of any Loan Document, any Loan Document shall, at
any time after its execution and delivery and for any reason,
cease to be in full force and effect or be declared to be null and
void, or the validity or enforceability thereof shall be contested
by NPCI or any Affiliate thereof, or NPCI or any Affiliate thereof
shall deny that it has any or any further liability or obligations
under any Loan Document to which NPCI or any Subsidiary thereof is
a party.
14.2 Remedies. If any Event of Default described in Section
13.1 shall have occurred and be continuing, the Administrative
Agent shall upon request of the Supermajority Banks by written
notice to the Company declare the Commitments to be terminated and
entire unpaid principal amount of the Notes, all interest accrued
and unpaid thereon and all other amounts payable under this
Agreement and the Notes to be due and payable, whereupon the
Commitments shall immediately terminate and such amounts shall,
except as otherwise expressly provided in this Section 13.2,
become immediately due and payable without presentment, demand,
protest, declaration or notice of any kind, all of which are
hereby expressly waived by the Company (except that if an event
described in Section 13.1(e) occurs, the Commitments shall
immediately terminate and such amounts shall become immediately
due and payable without presentment, demand, protest, declaration
or notice of any kind, all of which are hereby expressly waived by
the Company).
14.3 Preservation of Security for Unmatured Reimbursement
Obligations. In the event that, following the occurrence of an
Event of Default, any Letters of Credit shall remain outstanding
and undrawn upon, the Company shall immediately pay to the
Administrative Agent an amount in immediately available funds
equal to 100% of the then aggregate amount of Letters of Credit
outstanding, which funds shall be held by the Administrative Agent
in a collateral account to be maintained by the Administrative
Agent. Such collateral shall be held for the ratable benefit of
CBT as issuer of such Letters of Credit and the Banks holding
participations therein. Notwithstanding anything herein to the
contrary, such collateral shall be applied solely to unpaid
reimbursement obligations arising in respect of any such Letters
of Credit and/or the payment of CBT's obligations under any such
Letter of Credit when such Letter of Credit is drawn upon. The
Company hereby agrees to execute and deliver to the Administrative
Agent and the Banks such security agreements, pledges or other
documents as the Administrative Agent or any of the Banks may,
from time to time, reasonably require to perfect the pledge, lien
and security interest in and to any such collateral provided for
in this Section 13.3. Upon the payment or expiry of all such
outstanding Letters of Credit all such collateral shall be
released to the Company in due form at the Company's cost.
14.4 Remedies Cumulative. No remedy, right or power conferred
upon the Administrative Agent or the Banks is intended to be
exclusive of any other remedy, right or power given hereunder or
now or hereafter existing at law, in equity, or otherwise, and all
such remedies, rights and powers shall be cumulative.
15. RELATIONSHIP AMONG BANKS.
15.1 Appointment and Grant of Authority. Each Bank hereby
appoints the Administrative Agent, and the Administrative Agent
hereby agrees to act, as agent under this Agreement. The
Administrative Agent shall have and may exercise such powers under
this Agreement as are specifically delegated to the Administrative
Agent by the terms hereof, together with such other powers as are
reasonably incidental thereto. Each Bank hereby authorizes,
consents to, and directs the Company to deal with the
Administrative Agent as the true and lawful agent of such Bank to
the extent set forth herein.
15.2 Non-Reliance on Administrative Agent. Each Bank agrees
that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its
own credit analysis of NPCI and its Subsidiaries and decision to
enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or
not taking action under this Agreement. The Administrative Agent
shall not be required to keep informed as to the performance or
observance by the Company of this Agreement or any other document
referred to or provided for herein or to inspect the properties or
books of NPCI or its Subsidiaries. Except for notices, reports
and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning
the affairs, financial condition or business of NPCI, its
Subsidiaries (or any of its related companies) which may come into
the Administrative Agent's possession.
Bank of America, N.A., as Documentation Agent, and
SunTrust, as Syndication Agent, have undertaken no duties or
obligations as such Documentation Agent or Syndication Agent,
respectively, and shall not be responsible for any duties or
obligations as such Documentation Agent and Syndication Agent,
respectively.
15.3 Responsibility of the Administrative Agent and Other
Matters.
(a) The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this
Agreement and those duties and liabilities shall be subject
to the limitations and qualifications set forth in this
Section 14. The duties of the Administrative Agent shall be
mechanical and administrative in nature.
(b) Neither the Administrative Agent nor any of its
directors, officers or employees shall be liable for any
action taken or omitted (whether or not such action taken or
omitted is within or without the Administrative Agent's
responsibilities and duties expressly set forth in this
Agreement) under or in connection with this Agreement or any
other instrument or document in connection herewith, except
for gross negligence or willful misconduct. Without limiting
the foregoing, neither the Administrative Agent nor any of
its directors, officers or employees shall be responsible
for, or have any duty to examine into (i) the genuineness,
execution, validity, effectiveness, enforceability, value or
sufficiency of (a) this Agreement, the Note or the other Loan
Documents, or (b) any document or instrument furnished
pursuant to or in connection with this Agreement, the Note or
the other Loan Documents, (ii) the collectibility of any
amounts owed by the Company, (iii) any recitals or statements
or representations or warranties in connection with this
Agreement, the Note or the other Loan Documents, (iv) any
failure of any party to this Agreement to receive any
communication sent, or (v) the assets, liabilities, financial
condition, results of operations, business or
creditworthiness of NPCI and its Subsidiaries.
(c) The Administrative Agent shall be entitled to act,
and shall be fully protected in acting upon, any
communication in whatever form believed by the Administrative
Agent in good faith to be genuine and correct and to have
been signed or sent or made by a proper person or persons or
entity. The Administrative Agent may consult counsel and
shall be entitled to act, and shall be fully protected in any
action taken in good faith, in accordance with advice given
by counsel. The Administrative Agent may employ agents and
attorney-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected
by the Administrative Agent with reasonable care. The
Administrative Agent shall not be bound to ascertain or
inquire as to the performance or observance by the Company or
any Guarantor of any of the terms, provisions or conditions
of this Agreement or the Note or the other Loan Documents.
15.4 Action on Instructions. The Administrative Agent shall
be entitled to act or refrain from acting, and in all cases shall
be fully protected in acting or refraining from acting, under this
Agreement or the Note or any other instrument or document in
connection herewith or therewith in accordance with instructions
in writing from the Majority Banks (or, if required, all Banks or
Supermajority Banks, as the case may be).
15.5 Indemnification. To the extent the Company does not
reimburse and save the Administrative Agent harmless according to
the terms hereof for and from all costs, expenses and
disbursements in connection herewith, such costs, expenses and
disbursements shall be borne by the Banks ratably in accordance
with their Percentages and the Banks hereby agree on such basis
(i) to reimburse the Administrative Agent for all such costs,
expenses and disbursements on request and (ii) to indemnify and
save harmless the Administrative Agent against and from any and
all losses, obligations, penalties, actions, judgments and suits
and other costs, expenses and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent, other than as a consequence of
the gross negligence or willful misconduct on the part of the
Administrative Agent, arising out of or in connection with this
Agreement, the Note or the other Loan Documents or any instrument
or document in connection herewith or therewith, or any request of
the Banks, including without limitation the costs, expenses and
disbursements in connection with defending itself against any
claim or liability, or answering any subpoena, related to the
exercise or performance of any of its powers or duties under this
Agreement or the taking of any action under or in connection with
this Agreement, the Note or the other Loan Documents.
15.6 CBT and Affiliates. With respect to CBT's Commitment
and any Loans by CBT under this Agreement and the Notes and any
interest of CBT in the Notes, CBT shall have the same rights and
powers under this Agreement and such Notes as any other Bank and
may exercise the same as though it were not the Administrative
Agent. CBT and its affiliates may accept deposits from, lend
money to, and generally engage, and continue to engage, in any
kind of business with the Company as if CBT were not the
Administrative Agent.
15.7 Notice to Holder of Loans. The Administrative Agent may
deem and treat the payees of the Notes as the owners thereof for
all purposes unless a written notice of assignment, negotiation or
transfer thereof has been filed with the Administrative Agent.
Any request, authority or consent of any holder of any Loan shall
be conclusive and binding on any subsequent holder, transferee or
assignee of such Loan.
15.8 Successor Administrative Agent. The Administrative
Agent may resign at any time by giving 30 days' written notice
thereof to the Banks. Upon any such resignation, the Banks shall
have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been appointed by the
Banks and accepted such appointment in connection herewith or
therewith within 30 days after the retiring Administrative Agent's
giving notice of resignation, then the retiring Administrative
Agent may, but shall not be required to, on behalf of the Banks,
appoint a successor Administrative Agent who has accepted such
appointment. Notwithstanding the foregoing provisions of this
Section 14.8, CBT may at any time resign as Administrative Agent
if concurrently therewith an affiliate of CBT agrees to assume the
role of Administrative Agent hereunder. After any resigning
Administrative Agent's resignation hereunder, the provisions of
this Section 14 shall continue to be effective as to any action
taken or omitted hereunder or in connection herewith prior to such
resignation.
16. GENERAL.
16.1 Waiver and Amendments. No delay on the part of any Bank
or the holder of any Loan in the exercise of any power or right
shall operate as a waiver thereof, nor shall any single or partial
exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. The remedies
provided for herein are cumulative and not exclusive of any
remedies which may be available to any Bank at law or in equity.
No amendment, modification or waiver of, or consent with respect
to, any provision of this Agreement or the Notes or any other Loan
Document shall in any event be effective unless the same shall be
in writing and signed by the Company and the Majority Banks;
provided, however, that in no event shall any amendment,
modification or waiver, or consent with respect to, Sections 12.13
through 12.15 and Section 12.27 be effective unless the same shall
be in writing and signed by the Supermajority Banks; provided,
however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a)
waive any of the conditions specified in Section 9 or 10, (b)
increase the amounts or extend the terms of the Banks' Commitments
or subject the Banks to any additional obligations, (c) reduce the
principal of, or interest on, the Notes or any fees hereunder, (d)
postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees hereunder, or change the amount
due on such date, (e) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required to take action hereunder,
(f) release any collateral or any guarantor, if any, from its
obligations; (g) change the definition of Majority Banks or
Supermajority Banks; (h) change any provisions of Section 12.26;
or (i) change any provisions of this Section 15.1; provided,
further, that no amendment, waiver or consent to Section 14 shall
be effective unless signed by the Administrative Agent. Any
waiver of any provision of this Agreement or the Notes or any
other Loan Document, and any consent to any departure by the
Company or any Guarantor from the terms of any provision of this
Agreement, the Notes or any other Loan Document, shall be
effective only in the specific instance and for the specific
purpose for which given.
16.2 Notices. Except as otherwise expressly provided herein,
any notice hereunder between the parties shall be in writing
(including telegraphic, telex or telecopy communication) and shall
be given to the Company, the Administrative Agent or any Bank at
its address, telex number or telecopier number set forth on the
signature pages hereof or at such other address, telex number or
telecopier number as the Company, the Administrative Agent or such
Bank may, by written notice, designate as its address, telex
number or telecopier number for purposes of notice hereunder. All
such notices shall be deemed to be given when transmitted by telex
and the appropriate answerback is received, transmitted by
telecopier, delivered to the telegraph office, personally
delivered or, in the case of a mailed notice, three Banking Days
after the date sent by registered or certified mail, postage
prepaid, in each case addressed as specified in this Section 15.2;
provided, however, that notices to the Administrative Agent shall
not be effective until actually received by the Administrative
Agent.
16.3 Severability; Participations; Assignments.
(a) Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating
the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(b) Participations. Any Bank may grant one or more
participations in any Loan or any Letters of Credit, and
participant shall have the rights (and be subject to the
obligations) of a Bank set forth in Sections 7.5, 7.6, 8 and
12.7 hereof as if such participant were a Bank hereunder;
provided, however, that
(i) no participation contemplated in this Section 15.3
shall relieve the participating Bank from its Commitment or
its other obligations hereunder,
(ii) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations,
(iii) the Company and the Administrative Agent shall
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement, and
(iv) no participant, unless such participant is an
Affiliate of such Bank, or is itself a Bank, shall be
entitled to require such Bank to take or refrain from taking
any action hereunder, except that such Bank may agree with
any participant that such Bank will not, without such
participant's consent, take any actions of the type described
in clauses (a) through (f) of Section 15.1.
(c) Assignments.
(i) Subject to the prior written consent of the
Company, such consent not to be unreasonably withheld or
delayed (provided that such consent shall not be required if
an Event of Default has occurred and is continuing), each
Bank may assign to any Person (the "Assignee") all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all
of the assigning Bank's rights and obligations under this
Agreement, (ii) the total amount of the Commitment so
assigned to an Assignee or to an Assignee and its affiliates
taken as a whole shall equal or exceed the lesser of (A)
$5,000,000, or (B) the sum of the remaining Commitment held
by the assigning Bank, (iii) the parties to each such
assignment shall execute and deliver to the Administrative
Agent for its acceptance an Assignment and Acceptance in
substantially the form attached hereto as Exhibit N
("Assignment and Acceptance"), together with a processing and
recordation fee of $2,000, and (iv) the prior written consent
of the Company shall not be required for any assignment to
such Bank's Affiliate. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective
date shall be the date on which such Assignment and
Acceptance is accepted by the Administrative Agent, (x) the
Assignee thereunder shall be a party hereto and, to the
Assignment and Acceptance, have the rights and obligations of
a Bank under the Loan Documents and (y) the Bank assignor
thereunder shall be deemed to have relinquished its rights
and to be released from its obligations under the Loan
Documents, to the extent (and only to the extent) that its
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance (and, in the case
of an Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under
the Loan Documents, such Bank shall cease to be a party
thereto).
(ii) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with the Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or
document furnished pursuant thereto; (ii) such assigning Bank
makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Company or any Guarantor or the performance or observance by
the Company or any Guarantor of any of their respective
obligations under the Loan Documents or any other instrument
or document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of the Loan Documents,
together with copies of the most recent financial statements
delivered pursuant to Section 12.1 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such Assignee will, independently and
without reliance upon the Administrative Agent, such
assigning Bank or any other Bank and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such Assignee
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
Assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Bank.
(iii) The Administrative Agent shall maintain at its
address referred to on the signature pages hereto a copy of
each Assignment and Acceptance delivered to and accepted by
it.
(iv) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank, the Administrative Agent
shall, if such Assignment and Acceptance has been completed,
(i) accept such Assignment and Acceptance and (ii) give
prompt notice thereof to the Company.
(v) Anything in this Section 15.3 to the contrary
notwithstanding, any Bank may at any time, without the
consent of any Person, assign and pledge all or any portion
of its Commitment and the Loans owing to it to any Federal
Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release
the assigning Bank from its obligations hereunder
16.4 Indemnification. The Company hereby indemnifies and
holds harmless the Administrative Agent and each Bank and each of
the Administrative Agent's and the Banks' directors, counsels,
officers, employees, agents, persons controlling or controlled by
any of them and their assigns (collectively the "Indemnified
Parties") from and against any and all losses, claims, damages,
costs, liabilities and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and any out-of-pocket
expenses) to which any of the Indemnified Parties may become
subject, whether directly or indirectly, that result or arise
from, or relate to, any claim, action, lawsuit, or proceeding
related to (i) any tender offer, merger, purchase of stock,
purchase of assets or other similar transaction financed or
proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any of the Loans or (ii) the
execution, delivery, performance or enforcement of this Agreement
or any other Loan Document by any of the Indemnified Parties;
provided, however, that an Indemnified Party shall refund to the
Company any amount received from the Company for losses, damages,
costs and expenses incurred by such Person but which a court of
competent jurisdiction has found resulted solely from such
Person's own gross negligence or willful misconduct (individually
and not as a co-conspirator with the Company or any affiliate
thereof); provided further, that it is the intention of the
Company to indemnify the Indemnified Parties against the
consequences of their own negligence. The foregoing obligations
of the Company shall survive termination of this Agreement.
16.5 LAW. THIS AGREEMENT AND THE NOTE SHALL BE CONTRACTS
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
TEXAS.
16.6 Successors. This Agreement shall be binding upon the
Company, the Administrative Agent and the Banks and their
respective successors and assigns, and shall inure to the benefit
of the Company, the Administrative Agent and the Banks and the
successors and assigns of the Administrative Agent and the Banks.
The Company shall not assign its rights or duties hereunder
without the consent of all Banks.
16.7 Subsidiary Reference. Any reference herein to a
Subsidiary or Subsidiaries of any Person, and any financial ratio
or restriction or other provision of this Agreement which is
stated to be applicable to such Person "and its Subsidiaries" or
which is to be determined on a "consolidated" basis, shall apply
only to the extent such Person has any Subsidiaries and, where
applicable, only to the extent any such Subsidiaries are
consolidated with such Person for financial reporting purposes.
16.8 ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH ALL
OTHER WRITTEN AGREEMENTS BETWEEN THE PARTIES HERETO, IS THE FINAL
EXPRESS OF THE CREDIT AGREEMENT BETWEEN THE PARTIES HERETO, AND
SUCH WRITTEN CREDIT AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE
OF ANY PRIOR ORAL CREDIT AGREEMENT OR OF A CONTEMPORANEOUS ORAL
CREDIT AGREEMENT BETWEEN THE PARTIES HERETO.
16.9 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties on separate
counterparts and each such counterpart shall be deemed an
original, but all such counterparts shall together constitute but
one and the same Agreement.
16.10 Interest. All agreements between the Company, the
Administrative Agent and any Bank, whether now existing or
hereafter arising and whether written or oral, are hereby
expressly limited so that in no contingency or event whatsoever,
whether by reason of demand being made on the Notes or otherwise,
shall the amount contracted for, charged, reserved or received by
the Administrative Agent or any Bank for the use, forbearance, or
detention of the money to be loaned under this Agreement or
otherwise or for the payment or performance of any covenant or
obligation contained herein exceed the Highest Lawful Rate. If,
as a result of any circumstances whatsoever, fulfillment by the
Company of any provision hereof or of the Notes, at the time
performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury
law or result in the Administrative Agent or any Bank having or
being deemed to have contracted for, charged, reserved or received
interest (or amounts deemed to be interest) in excess of the
maximum lawful rate or amount of interest allowed by applicable
law to be so contracted for, charged, reserved or received by the
Administrative Agent or such Bank, then, ipso facto, the
obligation to be fulfilled by the Company shall be reduced to the
limit of such validity, and if, from any such circumstance, the
Administrative Agent or any Bank shall ever receive interest or
anything which might be deemed interest under applicable law which
would exceed the Highest Lawful Rate, such amount which would be
excessive interest shall be refunded to the Company, or, to the
extent (i) permitted by applicable law and (ii) such excessive
interest does not exceed the unpaid principal balance of the Notes
and the amounts owing on other obligations of the Company to the
Administrative Agent or any Bank under this Agreement and the
Notes, applied to the reduction of the principal amount owing on
account of the Notes or the amounts owing on other obligations of
the Company to the Administrative Agent or any Bank under this
Agreement and the Notes and not to the payment of interest. All
sums paid or agreed to paid to the Administrative Agent or any
Bank for the use, forbearance of detention of the indebtedness of
the Company, to the Administrative Agent or to any Bank shall, to
the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full term of such
indebtedness until payment in full of the principal thereof
(including the period of any renewal or extension thereof) so that
the interest on account of such indebtedness shall not exceed the
Highest Lawful Rate. The terms and provisions of this Section
15.10 shall control and supersede every other provision hereof and
of all other agreements between the Company, the Administrative
Agent and the Banks. "Highest Lawful Rate" shall mean with
respect to each Bank, the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for,
taken, reserved, charged, or received with respect to the Notes or
on other amounts, if any, due to such Bank pursuant to this
Agreement or the Notes, under laws applicable to such Bank which
presently in effect, or, to the extent allowed by law, under such
applicable laws that may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now
allow. To the extent required by applicable law in determining
the Highest Lawful Rate with respect to any Bank as of any date,
there shall be taken into account the aggregate amount of all
payments and charges theretofore charged, reserved or received by
such Bank hereunder or under the Notes which constitute or are
deemed to constitute interest under applicable law.
16.11 Agreement of NPCI and its Subsidiaries. By its
execution and delivery hereof, NPCI agrees to perform, and cause
each Subsidiary of NPCI to perform, each obligation hereunder
which the Company has agreed to cause NPCI and such Subsidiaries
to perform, and further agrees to not take any action which the
Company has agreed to not permit NPCI or any such Subsidiary to
take.
TEXAS BUSINESS AND COMMERCE CODE
SECTION 26.02 NOTICE
FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the date first written above.
NPC MANAGEMENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior V.P.
Address: ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
NPC INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior ▇.▇.
▇▇▇▇▇ BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ TRUST & SAVINGS BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Portfolio Manager
FIRSTAR BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF JUNE 20, 2000
AMONG
NPC MANAGEMENT, INC.,
VARIOUS BANKS
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as Administrative Agent
AND
BANK OF AMERICA, N.A.
as Documentation Agent
AND
SUNTRUST BANK
as Syndication Agreement
TABLE OF CONTENTS
Page
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND
COMPLIANCE WITH FINANCIAL RESTRICTIONS 1
1.1 Definitions 1
1.2 Definitions 13
1.3 Interpretation of Agreement 14
1.4 Compliance with Financial Restrictions 14
1.5 Accounting Principles 14
2. COMMITMENTS OF THE BANKS TO MAKE REVOLVING
LOANS; BORROWING PROCEDURES OF REVOLVING LOANS 15
2.1 Commitments 15
2.2 Loan Options 15
2.3 Borrowing Procedure of Revolving Loans; Funding of
Borrowings Revolving Loans 15
2.4 Continuation and/or Conversion of Revolving Loans 16
2.5 Extension of the Termination Date 17
3. NOTE EVIDENCING REVOLVING LOANS 17
3.1 Reference Rate Loans; Eurodollar Loans 17
3.2 Evidence of Revolving Loans 18
4. LETTER OF CREDIT 18
4.1 Issuance, Amendment, Renewal and Extension of
Letters of Credit 18
4.2 Procedure for Issuance, Amendment, Renewal and
Extension 18
4.3 Purchase of Participations 19
4.4 Presentment and Honor of Letter of Credit 19
4.5 Obligations of the Company Absolute 20
4.6 Liability of CBT 20
4.7 Provisions of Agreement Control 21
5. SWINGLINE LOANS 21
6. LETTER OF CREDIT 23
6.1 Interest 23
6.2 Commitment Fee 23
6.3 Letter of Credit Fees 23
6.4 Method of Calculating Interest and Fees 24
6.5 Administrative Agent's Fee 24
7. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF
THE COMMITMENTS 24
7.1 Repayment of Loan 24
7.2 Place of Payment 25
7.3 Prepayments 25
7.4 Reduction or Termination of Commitments 26
7.5 Offset 26
7.6 Proration of Payments 26
8. INDEMNIFICATION: EURODOLLAR LOANS 26
8.1 Indemnity for Funding Losses 26
8.2 Place of Payment 27
8.3 Additional Provisions Relating to Eurodollar Loans 27
9. CONDITIONS PRECEDENT TO ALL LOANS 29
9.1 Notice 29
9.2 Default 29
9.3 Insurance 30
9.4 Warranties 30
9.5 Certification 30
10. CONDITIONS PRECEDENT TO EFFECTIVE DATE AND INITIAL LOAN
AND LETTER OF CREDIT THEREON OR THEREAFTER 30
10.1 Notes 30
10.2 Master Guaranty 30
10.3 Resolutions; Consents and Approvals 30
10.4 Incumbency 31
10.5 Opinion 31
10.6 Officer's Certificate 31
10.7 General 31
11. REPRESENTATIONS AND WARRANTIES 31
11.1 Existence 31
11.2 Authorization 31
11.3 No Conflicts 32
11.4 Validity and Binding Effect 32
11.5 Financial Statements 32
11.6 Litigation 32
11.7 Taxes 32
11.8 Liens 33
11.9 No Default 33
11.10 Insurance 33
11.11 Subsidiaries 33
11.12 Partnerships 33
11.13 Regulation U 33
11.14 Compliance 34
11.15 Pension Plans 34
11.16 Properties 34
11.17 Investment and Holding Company Status 34
11.18 ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. COMPANY'S COVENANTS 35
12.1 Financial Statements and Other Information 35
12.2 Books, Records and Inspection 36
12.3 Conduct of Business 36
12.4 Taxes 36
12.5 Notices 36
12.6 Pension Plans 37
12.7 Expenses 37
12.8 Indebtedness 38
12.9 Liens 38
12.10 Merger, Purchase and Sale 38
12.11 Nature of Business 39
12.12 Franchise Rights 39
12.13 Net Worth 39
12.14 Leverage Ratio 39
12.15 Fixed Charge Coverage 39
12.16 Insurance 40
12.17 Restricted Payments 40
12.18 Leases 40
12.19 NCPI's & Subsidiaries' Stock 40
12.20 Guaranties 41
12.21 Investments 41
12.22 Subsidiaries 42
12.23 Unconditional Purchase Obligations 42
12.24 Other Agreements 42
12.25 Use of Proceeds 42
12.26 Restrictive Agreements 42
13. Consolidated Fixed Charge Requirement 43
13.1 Compliance with Laws 43
13.2 Transactions with Affiliates 43
14. EVENTS OF DEFAULT AND REMEDIES 43
14.1 Events of Default 43
14.2 Remedies 46
14.3 Preservation of Security for Unmatured
Reimbursement Obligations 46
14.4 Remedies Cumulative 47
15. RELATIONSHIP AMONG BANKS 47
15.1 Appointment and Grant of Authority 47
15.2 Non-Reliance on Administrative Agent 47
15.3 Responsibility of the Administrative Agent
and Other Matters 47
15.4 Action on Instructions 48
15.5 Indemnification 48
15.6 CBT and Affiliates 49
15.7 Notice to Holder of Loans 49
15.8 Successor Administrative Agent 49
16. GENERAL 49
16.1 Waiver and Amendments 49
16.2 Notices 50
16.3 Severability; Participations; Assignments 50
16.4 Indemnification 53
16.5 LAW 53
16.6 Successors 53
16.7 Subsidiary Reference 53
16.8 ENTIRE AGREEMENT 54
16.9 Counterparts 54
16.10 Interest 54
16.11 Agreement of NPCI and its Subsidiaries 39
EXHIBIT A-1 Form of Revolving Note
EXHIBIT A-2 Form of Swingline Note
EXHIBIT B Request for Extension of Termination Date
EXHIBIT C Litigation
EXHIBIT D Liens
EXHIBIT E Insurance
EXHIBIT F Subsidiaries
EXHIBIT G Partnerships/Joint Ventures
EXHIBIT H Indebtedness
EXHIBIT I Investments
EXHIBIT J Opinion of Counsel to Company
EXHIBIT K Notice of Borrowing
EXHIBIT L Notice of Continuation/Conversion
EXHIBIT M Compliance Certificate
EXHIBIT N Assignment and Acceptance
EXHIBIT O Letter of Credit Application
EXHIBIT P [omitted]
EXHIBIT Q Form of Master Guaranty
EXHIBIT R Form of Sharing Agreement