AMENDED AND RESTATED
REVOLVING CREDIT
AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT,
dated as of May 8, 1997 (but effective as of March 26,
1997) (this "Agreement"), is entered into among NPC
MANAGEMENT, INC., a Delaware corporation (the "Company"),
the banks listed on the signature pages hereof (together
with such other financial institutions that from time to
time become parties hereto, individually a "Bank" and
collectively the "Banks"), TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("TCB"), as Agent for the Banks and NATIONSBANK
OF TEXAS, N.A., as Documentation Agent for the Banks.
WHEREAS, NPC International, Inc., a Kansas
corporation ("NPCI"), the Banks, TCB as Agent and NationsBank
of Texas, N.A., as Documentation Agent, have entered into
the NPCI Credit Facility (as hereinafter defined) providing
for commitments from such Banks to make loans to NPCI and to
participate in letters of credit issued for the account of
NPCI;
WHEREAS, by its execution and delivery hereof the
Company hereby assumes effective as of the Closing Date (as
hereinafter defined), and by its execution and delivery hereof
NPCI hereby assigns to the Company effective as of the Closing
Date, all of the obligations and liabilities of NPCI
existing immediately prior to such assignment under the NPCI
Credit Facility and all related instruments (all such
obligations and liabilities collectively the "Assumed
Obligations");
WHEREAS, the Company has determined that it is in its
best interest to assume the Assumed Obligations and has
voluntarily requested that the Banks, and the Banks have
agreed to,
restructure, rearrange and renew the Assumed Obligations and
the respective commitments of the Banks and the Agent parties
to the NPCI Credit Facility into obligations and commitments
hereunder;
WHEREAS, any loans outstanding under any of the NPCI
Credit Facility, on the Closing Date bearing interest at the
Interbank Rate (Reserve Adjusted) (as defined therein) shall
be deemed continued as Eurodollar Loans under this Agreement
at such rate and for the Interest Period with respect thereto
under the NPCI Credit Facility; and
WHEREAS, the parties hereto intend to amend and restate
the Assumed Obligations and the NPCI Credit Facility in its
entirety as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH
FINANCIAL RESTRICTIONS.. DEFINITIONS, INTERPRETATION
OF AGREEMENT AND COMPLIANCE WITH FINANCIAL
RESTRICTIONS.. DEFINITIONS, INTERPRETATION OF AGREEMENT
AND COMPLIANCE WITH FINANCIAL RESTRICTIONS.
1.1 Definitions..1 Definitions..1 Definitions. In
addition to the terms defined elsewhere in this Agreement,
the following
terms shall have the meanings indicated for purposes of
this Agreement (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
Acquisition Agreement shall mean the Acquisition
Agreement dated as of March 25, 1996 by and among Seattle
Crab Co., NPCI and Skipper's, Inc.
Affiliate of any Person means any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person (excluding any
trustee under, or any committee with responsibility for
administering, any Plan (hereinafter defined)). A Person
shall be deemed to
be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the
election of directors or managing general partners of such
Person; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
Agent means TCB as Agent for the Banks hereunder and
each successor, as provided in Section 13.8, who shall act as
Agent.
Alternate Base Rate means a per annum interest rate which
is the greater at any time of (i) the rate of interest then
most recently announced by TCB at Houston, Texas as its prime
rate, or (ii) 0.5% plus the Federal Funds Rate. Such prime
rate of TCB is not necessarily intended to be the lowest
rate of interest determined by TCB in connection with
extensions of credit. Changes in the rate of interest on
that portion of any Loans maintained as Alternate Base
Rate Loans shall take effect simultaneously with each
change in the Alternate Base Rate. The Agent shall give
notice promptly to the Company and the Banks of changes in the
Alternate Base Rate.
Assignee shall have the meaning set forth
in Section 14.3(c)(i).
Assignment and Acceptance shall have the meaning set
forth in Section 14.3(c)(i).
Assumed Obligations -- see the Preamble.
Bank -- see the Preamble.
Banking Day means any day on which banks are open
for business in Houston, Texas, and with respect to Eurodollar
Loans, on which dealings in foreign currencies and exchange
may be carried on by the Agent in the interbank Eurodollar
market.
Capitalized Lease means any lease which is or should
be capitalized on the balance sheet of the lessee in accordance
with GAAP.
Capitalized Lease Obligations shall mean the amount at
which the aggregate rentals due and to become due under all
Capitalized Leases under which NPCI or any Subsidiary thereof,
as a lessee, would be required to be reflected as a
liability on the consolidated balance sheet of NPCI.
Code means the Internal Revenue Code of 1986 and
any successor statute of similar import, together with
the regulations thereunder, in each case as in effect from
time to time. References to sections of the Code shall be construed
to also refer to any successor sections.
Commitment means, as to any Bank, the amount set
forth opposite said Bank's name on the signature page hereof
(or such reduced amount as may be fixed by the Company
pursuant to Section 6.3).
Company -- see the Preamble.
Computation Period means any period of four
consecutive fiscal quarters of NPCI ending on the last day
of a fiscal quarter.
Consolidated Funded Debt shall mean all Funded Debt of
NPCI and its Subsidiaries, determined on a consolidated
basis eliminating intercompany items.
Consolidated Net Earnings means the consolidated
gross revenues of NPCI and its Subsidiaries less all operating
and nonoperating expenses of NPCI and its Subsidiaries
including taxes on income, all determined in accordance with
GAAP consistent with those followed in the preparation of
the financial statements referred to in Section 10.5, provided
that (i) there shall not be included in revenues (a) any
income representing the excess of equity in any Subsidiary
at the date of acquisition over the investment in such
Subsidiary, (b) any equity in the
undistributed earnings of any corporation which is not
a Subsidiary, (c) any earnings of any Subsidiary for any
period prior to the fiscal year of NPCI in which such
Subsidiary was acquired, or (d) any gains resulting from the
write-up of assets, and (ii) capital gains may be included in
revenues only to offset capital losses; provided, further,
that for the purpose of calculating Consolidated Net
Earnings with respect to the last day of the fiscal quarter
ended March 26, 1996, and with respect to the last day of
each of the next three successive fiscal quarters
thereafter, there shall not be included in calculating
Consolidated Net Earnings any charges against income
in connection with the Skipper's Sale, or in connection with
the closure or relocation of up to eight ▇▇▇▇ ▇▇▇▇'▇ locations
during calendar year 1996, which might otherwise be required
under GAAP.
Consolidated Net Income Available for Fixed Charges for
any period shall mean the sum of Consolidated Net Earnings
during such period, plus (to the extent deducted in
determining Consolidated Net Earnings during such period)
(i) interest expense, (ii) provision for income taxes, (iii)
depreciation and amortization, and (iv) operating lease
expense in each case on a consolidated basis.
Consolidated Net Worth means, at any time, the total
of stockholders' equity (including capital stock, additional
paid-in capital and retained earnings after deducting
treasury stock, ESOP obligations and similar contra accounts)
of NPCI and its Subsidiaries calculated in accordance with
GAAP.
Credit means the aggregate Commitments of the Banks to
make Loans and issue Letters of Credit under the terms
of this Agreement.
Dollars and the sign "$" mean lawful money of the
United States of America.
EBITDA means Consolidated Net Earnings before
interest expense, provision for taxes (to the extent not
excluded from Consolidated Net Earnings), depreciation,
amortization and the noncash portion of nonrecurring charges
(as defined by GAAP).
Effective Date means the date on which all the
conditions precedent set forth in Section 9 are met or waived
in writing by the Agent and the Majority Banks.
ERISA means the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder, in each
case as in effect from time to time. References to sections
of ERISA shall be construed to also refer to any successor
sections.
ERISA Affiliate means any corporation, trade or
business that is, along with NPCI, a member of a controlled
group of corporations or a controlled group of trades or
businesses, as described in sections 414 (b) and 414 (c),
respectively, of the Code.
Eurocurrency Reserve Percentage means, with respect to
any Interest Period, a percentage (expressed as a decimal)
equal to the daily average during such Interest Period of the
percentages in effect on each day of such Interest Period, as
prescribed by the Board of Governors of the Federal Reserve
System (or any successor), for determining reserve
requirements applicable to "Eurocurrency liabilities"
pursuant to Regulation D or any other then applicable
regulation of the Board of Governors which prescribes
reserve requirements applicable to "Eurocurrency
liabilities," as presently defined in Regulation D. For
purposes of this definition, any Eurodollar Loans hereunder
shall be deemed to be "Eurocurrency liabilities" as defined
in Regulation D.
Eurodollar Loan means any Loan which bears interest at
a rate determined with reference to the Interbank Rate
(Reserve Adjusted).
Event of Default means any of the events described
in Section 12.1.
Existing Note shall mean that certain promissory note
dated as of March 5, 1997 in the original principal
amount of $160,000,000 executed and delivered by NPCI under
the NPCI Credit Facility.
Federal Funds Rate means for any date the weighted
average of the rates on overnight Federal Funds
transactions, with members of the Federal Reserve System
only, arranged by Federal Funds brokers applicable to Federal
Funds transactions on that date. The Federal Funds Rate
shall be determined by the Agent on the basis of reports by
Federal Funds brokers to, and published daily by, the Federal
Reserve Bank of New York in the Composite Closing Quotations
for U.S. Government Securities. If
such
publication is unavailable or the Federal Funds Rate is not
set forth therein, the Federal Funds Rate shall be determined
on the basis of any other source reasonably selected by the
Agent.
In
the case of a day which is not a Banking Day, the Federal
Funds Rate shall be the Federal Funds Rate for the
immediately preceding Banking Day.
Fixed Charges shall mean the sum of
consolidated (i) interest expense, (ii) operating lease expense and
(iii) current maturities of Consolidated Funded Debt as
reflected in the GAAP financial statements of NPCI and its
Subsidiaries (which maturities shall be determined as of the
last day of the period consisting of four fiscal quarters for
which Fixed Charges are to be determined).
Franchise Agreement means any franchise agreement
between NPCI or any Subsidiary and Pizza Hut, Inc., as
such may be amended or modified from time to time.
Funded Debt shall mean (i) all Indebtedness having a
final maturity of more than one year from the date of
incurrence thereof (or which is renewable or extendable at the
option of the obligor for a period or periods of more than one
year from the date of incurrence), including all payments
in respect thereof that are required to be made within one
year from the date of any determination of Funded Debt, whether
or not included in current liabilities, (ii) all Capitalized
Lease Obligations maturing more than one year after the date
as of which the computation was made, and (iii) all
Guaranties which extend for more than one year after the date
of determination.
GAAP means generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board,
or in such other statements by such other entity as may be in
general use by significant segments of the accounting
profession, which are applicable to the
circumstances as of the date of determination.
Guaranties by any Person shall mean all obligations
(other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) of such
Person guaranteeing, or in effect guaranteeing, any
Indebtedness, dividend or other obligation of any other
Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, all
obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such
Indebtedness or obligation or any property or assets
constituting security therefor, (ii) to advance or supply funds
(x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other
balance sheet condition or otherwise to advance or make
available funds for the purchase or payment of such
Indebtedness or obligation, (iii) to lease property or to
purchase securities or other property or services
primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary
obligor to make payment of the Indebtedness or
obligation, or (iv) otherwise to assure the owner of
the Indebtedness or obligation of the primary obligor against
loss in respect thereof. For the purposes of all computations
made under this Agreement, a Guaranty in respect of any
Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such
Indebtedness for borrowed money which has been guaranteed,
and a Guaranty in respect of any other obligation or
liability or any dividend shall be deemed to be Indebtedness
equal to the maximum aggregate amount of such obligation,
liability or dividend.
Guarantors shall mean, at any time, each Person which
is then a party to the Master Guaranty, which shall be NPCI and
each Subsidiary thereof (other than the Company).
Highest Lawful Rate shall have the meaning set forth
in Section 14.10.
Indebtedness means, without duplication,
(i) any obligation, including, without limitation,
any obligation for borrowed money (and any notes
payable and drafts accepted representing extensions of
credit whether or
not representing obligations for borrowed money),
which under GAAP is shown on the balance sheet as a
liability (including any obligation under a Capitalized
Lease but excluding reserves for deferred income
taxes and other reserves to the extent that such
reserves do not constitute an obligation),
(ii) indebtedness which is secured by a Lien on,
or payable out of the proceeds of production from,
property owned by NPCI or any Subsidiary thereof, whether
or not the indebtedness secured thereby shall have been
assumed by NPCI or such Subsidiary,
(iii) guarantees, endorsements (other than
endorsements of negotiable instruments for collection in
the ordinary course of business) and other
contingent liabilities (whether direct or indirect) in
connection with the obligations, stock or dividends of
any Person,
(iv) obligations under any contract providing for
the making of loans, advances or capital contributions
to any Person, or for the purchase of any property from
any Person, in each case in order to enable NPCI or
any Subsidiary thereof primarily to maintain working
capital, net worth or any other balance sheet condition
or to pay debts, dividends or expenses of such Person,
(v) obligations under any contract for the purchase
of materials, supplies or other property or services if
such contract (or any related document) requires that
payment for such materials, supplies or other property or
services shall be made regardless of whether or not
delivery of such materials, supplies or other property
or services is ever made or tendered,
(vi) obligations under any contract to rent or
lease (as lessee) any real or personal property if such
contract (or related document) provides that the
obligation to make payments thereunder is absolute and
unconditional under conditions not customarily found in
commercial leases then in general use and requires
that the lessee purchase or otherwise acquire material
amounts of securities, assets or obligations of the
lessor,
(vii) obligations under any other contract
which, in economic effect, is substantially
equivalent to a guarantee;
all as determined in accordance with GAAP; provided
that Indebtedness shall not include trade accounts payable,
accrued expenses or income taxes payable, each arising in the
ordinary course of business.
Indebtedness to Pro Forma EBITDA Ratio means, as of the
last day of any fiscal quarter, the ratio of (a) all
Indebtedness of NPCI and its Subsidiaries on such day to (b)
Pro Forma EBITDA for the period of four consecutive fiscal
quarters ending on such day.
Indemnification Agreements shall mean, collectively,
the Lease Indemnification Agreement and the Liability
Assumption Agreement, as those agreements are defined and
identified in the Acquisition Agreement.
Interbank Rate means, for any Interest Period, the rate
per annum at which Dollar deposits in immediately available
funds are offered to the Agent two Banking Days prior to the beginning
of such Interest Period by major banks in the interbank
Eurodollar market as at or about 10:00 a.m., Houston time, for
delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount equal to
the amount of TCB's Eurodollar Loan for such Interest Period.
Interbank Rate (Reserve Adjusted) means a rate per
annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined pursuant to the following formula:
Interbank Rate = Interbank Rate
(Reserve Adjusted) 1.0-Eurocurrency Reserve Percentage
Interest Period means, with respect to any Eurodollar
Loan, the one month, two month, three month or six month
period commencing on the applicable borrowing date or
conversion date of such Loan or the last day of the prior
Interest Period for such Loan, as the case may be; provided,
however, that no Interest Period shall extend beyond the
Termination Date. Each Interest Period which would otherwise
end on a day which is not a Banking Day shall end on the next
succeeding Banking Day unless such next succeeding Banking Day
is the first Banking Day of a calendar month, in which case
it shall end on the next preceding Banking Day.
Investment means any investment, made in cash or by
delivery of any kind of property or asset, in any Person,
whether by acquisition of shares of stock or similar
interest, Indebtedness or other obligation or security, or by
loan, advance or capital contribution, or otherwise.
Joinder Agreement shall have the meaning set forth in
the Master Guaranty.
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 -- see Section 2.1.
Loan Documents means this Agreement, the Note, 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 Note,
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.
Master Guaranty shall mean the Master Guaranty executed
and delivered pursuant hereto, to be substantially in the
form of Exhibit Q, as amended from time to time.
Majority Banks means those Banks whose share in
the aggregate principal amount of the Loans outstanding
constitutes (or, if no Loans are outstanding, those
whose Percentage constitutes) more than fifty percent (50%).
Margin means (a) initially, 1.00% and (b) on and after
any date specified below on which the Margin is to be
adjusted, the rate per annum set forth in the table below opposite the
applicable Indebtedness to Pro Forma EBITDA Ratio:
Indebtedness
to
Pro Forma EBITDA Margin
2.75 < x 1.50% 2.50 < x < 2.75
1.25% 2.25 < x < 2.50 1.00% 1.50 < x
< 2.25 .75% x < 1.50
.50%
The Margin shall be adjusted, to the extent applicable, (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 11.1(a) or 11.1(b), as applicable, by the
45th day (or, if applicable, the 90th day) after any fiscal
quarter, the Margin shall be 1.50% until such financial
statements are delivered and (ii) upon the effective
date of any acquisition permitted pursuant to Section
11.10(a) based upon the change, if any, in the Indebtedness
to Pro Forma EBITDA Ratio set forth in the certificate
delivered in connection with such acquisition pursuant to
Section 11.1(c).
Note means the Note referred to in Section 3.
Note Agreements means the Note Agreements identified in
Exhibit H.
NPCI -- see the Preamble.
NPCI Credit Facility shall mean that certain Revolving
Credit Agreement dated as of March 5, 1997 among NPCI,
the financial institutions party thereto, and the Agent.
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, the
last day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under
ERISA.
Percentage means, for any Bank, the percentage which
the amount of such Bank's Commitment is of the amount of the
Credit.
Permitted Guaranty Debt means (1) Indebtedness evidenced
by the Master Guaranty, (2) Indebtedness evidenced by any guaranty agreement
given by any Guarantor in favor of any holder of any
Indebtedness listed on Exhibit H, and (3) Indebtedness
evidenced by any guaranty agreement given by any Guarantor in
favor of any holder of any Indebtedness of the Company that may
be incurred by the Company pursuant to Section 11.8(e).
Permitted Liens means the following, provided that none
of the following materially adversely affect the financial
condition or business operations of NPCI and its Subsidiaries
taken as a whole:
(1) Liens of taxes, assessments, and governmental
charges not yet payable, or not delinquent and
payable without interest or penalty so long as so payable;
(2) Liens of taxes, assessments, governmental charges
and other Indebtedness, the validity of which are
being contested in good faith by appropriate action
diligently pursued, provided that such proceeding shall
suspend the collection of such taxes, assessments,
governmental charges, or other Indebtedness and no
property of NPCI or any Subsidiary thereof would be in
any danger of being forfeited during the period of such
contest;
(3) Liens of employees and laborers for current
wages, not yet due, incidental to current operations or
current construction, and Liens of others for current
indebtedness, not yet due, incidental to current
construction, including maintenance, repair, and
alteration; mechanics', materialmen's, workmen's,
repairmen's or carriers' liens, or other similar Liens
arising in the ordinary course of business, or
deposits, Liens, or pledges of personal property to
obtain the release of any such Liens;
(4) oil and gas leases, licenses, privileges, other
leases, releases of damages, easements, restrictions on
the use of real property, zoning laws and ordinances,
rights-ofway, minor irregularities in title and
other similar encumbrances (including the right of
vendors to occupy and use real property previously sold
to NPCI or any Subsidiary thereof not immediately
required by NPCI or any Subsidiary thereof for use in
its business), not in any case impairing the use by NPCI
or any Subsidiary thereof in its business of the property
affected thereby;
(5) in the case of easements and right-of-way grants
from governmental bodies, the rights of the public;
(6) Liens existing prior to the time of acquisition
upon any real or personal property acquired by NPCI or
any Subsidiary thereof through purchase, merger,
consolidation, or otherwise, whether or not assumed
by NPCI or any Subsidiary thereof;
(7) Liens in connection with the acquisition of
property after the date hereof by way of purchase
money mortgage, conditional sale or other title
retention agreement, Capitalized Lease or other
deferred payment contract, and attaching only to the
property being acquired, if the Indebtedness secured
thereby does not exceed 75% (100% in the case of a
Capitalized Lease) of the lesser of cost or fair market
value of such property at the time of acquisition
thereof;
(8) deposits, Liens, or pledges of personal property
or of securities to secure payments of workers'
compensation, unemployment insurance, old age pensions
or other Social Security, or to secure the performance of
bids, tenders, contracts (other than contracts for the
payment of money), or leases to which NPCI or any
Subsidiary thereof is a party, or to secure public or
statutory obligations of
NPCI or any Subsidiary thereof, or deposits of cash
or United States government obligations to secure or in
lieu of surety, stay or appeal bonds to which NPCI or any
Subsidiary thereof is a party, or pledges, Liens, or
deposits for similar purposes in the ordinary course of
business;
(9) Liens based on workers' compensation claims
which are not due and payable, or the validity of which
is being contested in good faith; and
(10) minor discrepancies and encroachments that
might be disclosed by an accurate survey.
Should any of the preceding Permitted Liens occur, the Banks
may reasonably request, as to all the preceding matters
referred to in paragraphs (1), (2), (3), (7), (8) and
(9) above, that adequate reserves be set aside and
maintained by NPCI or any Subsidiary with respect thereto.
Person means an individual, partnership, corporation,
trust, joint venture, joint stock company, association,
unincorporated organization, government or agency or
political subdivision thereof, or other entity.
Pizza Hut, Inc. means Pizza Hut, Inc., a
Delaware corporation.
Plan means a "pension plan," as such term is defined
in ERISA, established or maintained by NPCI or any ERISA
Affiliate or as to which NPCI or any ERISA Affiliate
contributes or is a member or otherwise may have any
liability.
Pro Forma EBITDA means EBITDA provided, however, that
for the purpose of calculating Pro Forma EBITDA (i) with
respect to the last day of the fiscal quarter ended March 26,
1996, and with respect to the last day of each of the next
three successive fiscal quarters thereafter, Pro Forma EBITDA
shall be calculated without regard for any charges against
income in connection with the Skipper's Sale, or in
connection with the closure or relocation of up to eight
▇▇▇▇ ▇▇▇▇'▇ locations during calendar year 1996, which
might otherwise be required under GAAP and (ii) with
respect to any Person acquired pursuant to
Section 11.10(a) (the "Acquisition Target"), EBITDA of
the Acquisition Target for each full fiscal quarter included
in the applicable Computation Period prior to such
Acquisition (including the fiscal quarter during which it was
acquired) shall be included and adjusted for tangible
operational changes due to field expense differentials, royalty
payments to be made to Pizza Hut, Inc., contractual rent
payments on real estate and equipment and general and
administrative cost differences, all as set forth in
the most recent certificate delivered pursuant to
Section 11.1(c).
Reference Rate Loan means any Loan which bears interest
at or by reference to the Alternate Base Rate.
Reportable Event has the meaning given to such term
in ERISA.
Responsible Officer means the Chief Operating Officer,
the Chief Financial Officer or the Chief Accounting Officer.
Romacorp, Inc. means Romacorp, Inc., a Delaware
corporation.
Sharing Agreement shall mean the Sharing Agreement
executed and delivered as of the Closing Date, substantially
in the form of Exhibit R attached hereto, as amended from time
to time.
Skipper's Sale shall mean NPCI's sale of the common stock
of Skipper's Inc. in accordance with all of the terms and
conditions of the Acquisition Agreement.
Subsidiary means any Person which is directly or
indirectly controlled by NPCI or its other Subsidiaries or of
which or in which NPCI or its other Subsidiaries at any time
own directly or indirectly 50% or more of (i) the combined
voting power of all classes of stock having general voting
power under ordinary circumstances to elect a majority of
the board of directors of such Person, if it is a
corporation, (ii) the capital interest or profits interest of
such Person, if it is a partnership, joint venture or
similar entity, or (iii) the beneficial interest of such
Person, if it is a trust, association or other
unincorporated organization.
Supermajority Banks means those Banks whose share in
the aggregate principal amount of the Loans outstanding
constitutes (or, if no Loans are outstanding, those
whose Percentages constitute) at least sixty-seven percent
(67%).
TCB -- see the Preamble.
Termination Date means March 3, 2000, as such date may
from time to time be extended in accordance with Section 2.5,
or such earlier date as may be fixed by the Company on at
least thirty (30) Banking Days' written notice to the Agent
and the Banks.
Termination Event with respect to any Plan means (i)
the institution by NPCI, the PBGC or any other Person of
steps to terminate such Plan, (ii) the occurrence of a
Reportable Event with respect to such Plan which the Agent
reasonably believes may be a basis for the PBGC to
institute steps to terminate such Plan, or (iii) the
withdrawal from such Plan (or deemed withdrawal under
section 4062(f) of ERISA) by NPCI or any ERISA Affiliate if
NPCI or such ERISA Affiliate is a "substantial employer"
within the meaning of section 4063 of ERISA.
Unmatured Event of Default means any event or
condition which, with the lapse of time or giving of notice to
the Company or both, would constitute an Event of Default.
Value shall mean, with respect to any asset at any date
of determination, the greater of such asset's book or fair
market value as of the date of determination, with "book
value" being the value of such asset as would appear
immediately prior to such determination on a balance sheet
of the owner of such asset prepared in accordance with GAAP.
1.2 Other Definitional Provisions..2 Other
Definitional
Provisions..2 Other Definitional Provisions. Unless
otherwise defined or the context otherwise requires, all
financial and accounting terms used herein or in any
certificate or other document made or delivered pursuant
hereto shall be defined in accordance with GAAP. Unless
otherwise defined therein, all terms defined in this
Agreement shall have the defined meanings when used in the
Note or in any certificate or other document made or delivered
pursuant hereto.
1.3 Interpretation of Agreement..3 Interpretation of
Agreement..3 Interpretation of Agreement. A Section, an
Exhibit or a Schedule is, unless otherwise stated, a reference
to a section hereof, an exhibit hereto or a schedule hereto,
as the case may be. Section captions used in this Agreement
are for convenience only, and shall not affect the construction of this
Agreement. The words "hereof," "herein," "hereto" and
"hereunder" and words of similar purport when used in
this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement.
1.4 Compliance with Financial Restrictions..4 Compliance
with Financial Restrictions..4 Compliance with
Financial Restrictions. Compliance with each of the financial
ratios and restrictions contained in Section 11 shall, except
as otherwise provided herein, be determined in accordance with GAAP
consistently followed.
1.5 Accounting Principles..5 Accounting Principles..5
Accounting Principles. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent
with those applied in the preparation of the audited
financial statements referred to in Section 11.1 hereof. All
financial information delivered to the Agent pursuant to
Section 11.1 hereof shall be prepared in accordance with
GAAP applied on a basis consistent with those reflected by the
initial financial
statements delivered to the Agent pursuant to
Section 10.5, except (i) where such principles are inconsistent with the
requirements of this Agreement and (ii) for those
changes with which the independent certified public
accountants referred to in Section 11.1(a) hereof concur
in rendering unqualified certificates as to financial
statements.
2. COMMITMENTS OF THE BANKS; BORROWING PROCEDURES..
COMMITMENTS OF THE BANKS; BORROWING PROCEDURES.. COMMITMENTS
OF THE BANKS; BORROWING PROCEDURES.
2.1 Commitments..1 Commitments..1 Commitments. Subject to
the terms and conditions of this Agreement, each Bank,
severally but not jointly, agrees to make loans (collectively
the "Loans" and individually each a "Loan") to the Company,
which Loans the Company may prepay and reborrow during the
period from the date hereof to, but not including, the
Termination Date, in such amounts as the Company may from
time to time request, but not exceeding
in the aggregate at any one time outstanding such
Bank's Commitment less such Bank's Percentage of the
aggregate face amount of all Letters of Credit issued and
outstanding at such time. All Loans made hereunder shall be
made by the Banks on a pro-rata basis according to each Bank's
Percentage.
2.2 Loan Options..2 Loan Options..2 Loan Options.
Each Loan shall be either a Reference Rate Loan or a Eurodollar
Loan, except as otherwise provided herein. Any combination of types of
Loans may be outstanding at the same time; provided,
however, that the Company may not have more than ten
borrowings of Eurodollar Loans outstanding at the same time.
2.3 Borrowing Procedure..3 Borrowing Procedure..3
Borrowing Procedure.
(a) Subject to the terms of this Agreement,
the Company shall give the Agent (y) at least three Banking
Days' prior notice of each proposed borrowing of Eurodollar
Loans not later than 10:00 a.m. Houston time on the date of
such notice, and (z) 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. The Agent shall promptly
advise each Bank thereof. Not later than 12:30 p.m.,
Houston time, on the date of a proposed borrowing, each
Bank shall provide the Agent at its principal office in
Houston with immediately available funds covering such Bank's
ratable share (if any) of such borrowing. Notwithstanding
the foregoing, the notice for the initial borrowing
hereunder may be made on the date of the proposed borrowing
and the Banks' funding obligations referred to in the
immediately preceding sentence shall be extended to 2:30
p.m., Houston time.
(b) Each borrowing of Reference Rate Loans shall be
in a minimum amount of $100,000 or an integral multiple
thereof. Each borrowing of Eurodollar Loans shall be in a
minimum amount of $500,000 or an integral multiple thereof.
(c) The Agent, on behalf of the Banks, will pay to
the Company, by crediting its commercial demand deposit
account at TCB, the amount of each Loan on the date designated
in the notice of borrowing upon receipt of the documents
required in Section 8 and, if applicable, Section 9, with
respect to such Loan.
2.4 Continuation and/or Conversion of Loans..4
Continuation and/or Conversion of Loans..4 Continuation
and/or Conversion of Loans. The Company may elect (i) to
continue any outstanding Eurodollar Loan from the current
Interest Period of such Loan into a subsequent Interest
Period to begin on the last day of such current Interest
Period, or (ii) to convert any outstanding Reference Rate
Loan into a Eurodollar Loan or, on the last day of the current
Interest Period, to convert one type of Loan into another,
in each case by giving at least three (3) Banking Days'
prior telephonic notice not later than 10:00 a.m., Houston
time, on the date of such notice (promptly confirmed in
writing in the form of Exhibit L hereto) to the Agent
(which shall promptly advise each Bank thereof) of such
continuation or conversion, specifying the date, amount and
the Interest Period, if applicable. Absent notice of
continuation or conversion, each Eurodollar Loan shall
automatically convert into a Reference Rate Loan on the last
day of the current Interest Period for such Loan, unless
paid in full on such last day. No Loan shall be converted
into a Eurodollar Loan and no Eurodollar Loan shall be
continued less than thirty days before the Termination Date or
at any time that an Event of Default or an Unmatured
Event of Default exists.
2.5 Extension of the Termination Date..5 Extension of
the Termination Date..5 Extension of the Termination Date.
(a) At least 60 but not more than 90 days before
any anniversary of the Effective Date, the Company may, by
delivery of a written request to the Agent in the form of
Exhibit B, request that each Bank agree to extend the
then-scheduled Termination Date by one (1) year.
(b) The Agent shall, upon receipt of any
such extension request, promptly notify each Bank thereof, and
request that each Bank promptly advise the Agent of its
approval or rejection of such request.
(c) Upon receipt of such notification from the
Agent, each Bank may, in its sole discretion, agree to extend
for one (1) year, or decline to extend, the Termination Date,
and each Bank shall, within 30 days of receipt of the notice
described in clause (b), notify the Agent of its approval or
denial of such request. If any Bank does not so notify the
Agent, such Bank shall be deemed to have denied such
extension request. The Agent shall, no later than 30 days
following its receipt of any extension request from the
Company, notify the Company as to the
Banks which have approved or denied such request.
(d) If all of the Banks approve any such request,
the Termination Date shall be extended to the date which is
one (1) year after the Termination Date in effect immediately
prior to such extension. If fewer than all of the Banks
approve any such request, the Termination Date shall not be
extended.
3. NOTE EVIDENCING LOANS.. NOTE EVIDENCING LOANS.. NOTE
EVIDENCING LOANS.
3.1 Reference Rate Loans; Eurodollar Loans..1 Reference
Rate Loans; Eurodollar Loans..1 Reference Rate Loans;
Eurodollar Loans. The Reference Rate Loans and Eurodollar
Loans of all Banks shall be evidenced by the Company's promissory note (the
"Note") in the form of Exhibit A, with appropriate
insertions, which Note shall (i) be dated the Effective Date
(or such other date satisfactory to the Agent), (ii) be made
payable to the order of the Agent for the account of the Banks
ratably in accordance with their Percentages, and (iii)
mature on the Termination Date. The Note shall be an
amendment and restatement of the Existing Note.
3.2 Evidence of Loans..2 Evidence of Loans..2
Evidence of Loans. All Loans made by the Banks to the
Company pursuant to this Agreement and all payments of
principal shall be evidenced by the Agent in its records or, at
its option, on the schedule attached to the Note, which
records or schedule(s) shall be rebuttable presumptive evidence
of the subject matter thereof, provided that the failure of the
Agent to make any endorsement or other notation, or any error
in doing so, shall not affect the obligations of the Company
hereunder or under the Note.
4. LETTER OF CREDIT. LETTER OF CREDIT. LETTER OF CREDIT
4.1 Issuance of Letters of Credit..1 Issuance of Letters
of Credit..1 Issuance of Letters of Credit. Subject to
the terms and conditions of this Agreement, the Commitments
may, in addition to the Loans provided for in Section 2.1, be
utilized, upon the request of the Company, for the issuance of
letters of credit
by TCB for the account of the Company (such letters of
credit issued by TCB being hereinafter collectively referred to
as the "Letters of Credit"); provided that TCB shall have
no obligation to issue any such Letter of Credit if, after giving effect
to such issuance of the proposed Letter of Credit, the
aggregate face amount of all Letters of Credit outstanding
at such time would exceed (i) together with the aggregate
outstanding amount of Loans at such time, the Credit at
such time, or (ii) $12,000,000.
4.2 Procedure for Issuance..2 Procedure for Issuance..2
Procedure for Issuance. (a) In order to effect the issuance
of each Letter of Credit, the Company shall deliver to the Agent (which
delivery may be by facsimile transmission) a letter of
credit application in substantially the form attached hereto as
Exhibit O (the "Letter of Credit Application") not later
than 10:00 A.M., Houston time, two (2) Business Days prior
to the proposed date of issuance of the Letter of Credit. The letter of credit
application 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 (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 (B) later than ten (10) days prior to
the Termination Date.
(b) Upon receipt of the Letter of Credit
Application, 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 of the Letter of
Credit, exist, TCB shall issue such Letter of Credit to the
beneficiary specified in the Letter of Credit Application no
later than the close of business, in Houston, Texas, on
the date so specified. The Agent shall provide the
Company and each Bank with a copy of the Letter of Credit
which has been issued. 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 TCB, 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..3 Purchase of
Participations..3 Purchase of Participations. Upon the
issuance date of each Letter of Credit, TCB 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 TCB, 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. If requested by
TCB, the other Banks will execute any other documents
reasonably requested by TCB 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
TCB) 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..4
Presentment and Honor of Letter of Credit..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 TCB has determined is in compliance with the
conditions for payment thereunder, TCB shall promptly notify
the Company, the Agent and each Bank of the intended date of
honor of such draft and subject to Section 3.1 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 Loan to the Company as of the date of
payment of such draft by TCB, 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 Agent for the benefit of TCB an amount equal to its
Percentage of the presented draft on the day TCB is required
to honor such draft. If such
amount is not in fact made available to the 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 Agent.
4.5 Obligations of the Company Absolute..5 Obligations
of the Company Absolute..5 Obligations of the Company
Absolute. The Company's obligation to reimburse TCB 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 Agent for the account of the
Banks upon demand by the 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), TCB, 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 TCB 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 TCB; and
(d) any other circumstance or event
whatsoever, whether or not similar to the foregoing.
4.6 Liability of TCB..6 Liability of TCB..6 Liability of TCB. 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 TCB, the Agent, nor any Bank shall be liable or
responsible for, and the Company hereby indemnifies and holds TCB, the 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 TCB, the Agent or any Bank, except damages
determined to have been caused by gross negligence or willful misconduct of
TCB in determining whether documents presented under a Letter of Credit
comply with the terms of such Letter of Credit and there shall have been
a wrongful payment as a result thereof (for which only TCB shall be liable
or responsible); provided that, it is the intention of the Company
hereunder to indemnify TCB, the Agent and each Bank for its own
negligence, other than negligence constituting gross negligence or willful
misconduct. In furtherance and not in limitation of the foregoing, TCB 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..7 Provisions of Agreement
Control..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.
50 INTEREST AND FEES. INTEREST AND FEES. INTEREST AND FEES.
5.1 Interest..1 Interest..1 Interest.
(a) Reference Rate Loan. The unpaid principal of the Reference Rate
Loans shall bear interest prior to maturity at a rate per annum equal to
the Alternate Base Rate in effect from time to time. Prior to maturity
interest on each Reference Rate Loan shall be payable on each Payment Date
therefor and on the Termination Date.
(b) Eurodollar Loans. The unpaid principal of each Eurodollar Loan
shall bear interest prior to maturity at a rate per annum equal to the
Interbank Rate (Reserve Adjusted) in effect for each Interest Period
therefor plus the Margin from time to time in effect. Interest on each
Eurodollar Loan shall be payable on each Payment Date therefor and on the
Termination Date.
(c) Interest After Maturity. The Company shall pay to the Banks
interest on any amount of principal of any Loan which is not paid when
due, whether at stated maturity, by acceleration or otherwise, accruing
from and including the date such amount shall have become due to (but not
including) the date of payment thereof in full, at the rate per annum, which
is equal to the greater of (i) 2% in excess of the rate applicable to
the unpaid amount immediately before it became due or (ii) 2% in excess of
the Alternate Base Rate from time to time in effect. Interest after
maturity shall be payable on demand.
5.2 Commitment Fee..2 Commitment Fee..2 Commitment Fee. The Company
agrees to pay to the Banks ratably in accordance with their Percentages,
a commitment fee, for the period commencing on March 31, 1997 and ending on
the earlier of (x) the Termination Date and (y) the date of termination
of the Credit, equal to 0.25% per annum on the daily average of the unused
amount of the Credit. The commitment fee paid to the Banks pursuant to this
Section 5.2 shall be payable on the last day of each March, June, September
and December and SEQ ParaNumbers2_0 \* Arabic \c7