EXHIBIT INDEX
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Exhibit
Number Description Page No.
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10(r)(1) Note Purchase Agreement dated
October 10, 1995, between BFC
Bank (Cayman) Ltd. and the
Company
10(r)(2) Modification and Waiver to
Note Purchase Agreement, in
the stated amount of
$2,500,000.00, dated October
12, 1995, between BFC Bank
(Cayman) Ltd. and the Company
10(r)(3) Floating Rate Series C Senior
Note Due 1997, in the stated
amount of $2,500,000.00,
dated October 12, 1995,
between BFC Bank (Cayman)
Ltd. and the Company
10(s)(1) Note Purchase Agreement dated
October 10, 1995, between
Neue Bank, AG and the Company
10(s)(2) Modification and Waiver to
Note Purchase Agreement, in
the stated amount of
$2,500,000.00, dated October
24, 1995, between Neue Bank
AG and the Company
10(s)(3) Floating Rate Series C Senior
Note Due 1997, in the stated
amount of $2,500,000.00,
dated November 2, 1995,
between Neue Bank, AG and the
Company.
10(t)(1) Entertainment Operating Fund
Line of Credit, in the stated
amount of $1,000,000.00,
dated November 15, 1995,
between International
Association of ShowBiz Pizza
Time, Restaurants, Inc. and
the Company.
10(t)(2) Entertainment Operating Fund
Promissory Note, in the
stated amount of $1,000,000,
dated November 15, 1995,
between International
Association of ShowBiz Pizza
Time Restaurants, Inc. and
the Company.
10(u)(1) National Advertising
Production Line of Credit, in
the stated amount of
$750,000.00, dated November
15, 1995, between
Inernational Assocation of
ShowBiz Pizza Time
Restaurants, Inc. and the
Company.
10(u)(2) National Advertising
Production Promissory Note,
in the stated amount of
$750,000.00, dated November
15, 1995, between
International Association of
ShowBiz Pizza Time
Restaurants, Inc. and the
Company.
10(v)(1) National Media Fund Line of
Credit, in the stated amount
of $2,000,000.00, dated
November 15, 1995, between
International Association of
ShowBiz Pizza Time
Restaurants, Inc. and the
Company.
10(v)(2) National Media Fund
Promissory Note, in the
stated amount of
$2,000,000.00, dated November
15, 1995, between
International Association of
ShowBiz Pizza Time
Restaurants, Inc. and the
Company.
21 -- List of Subsidiaries
23 -- Independent Auditor's Consent
EXHIBIT (r)(1)
SHOWBIZ PIZZA TIME, INC.
-----------------------
Floating Rate Series C Senior Notes due 1997
____________________
NOTE PURCHASE AGREEMENT
____________________
Dated as of October 10, 1995
Table of Contents
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Page
1. THE NOTES. . . . . . . . 1
1.1. Authorization of Notes 1
1.2. Interest Rates on the Notes;
Reset Procedures for Series C
Notes. . . . . . . . 1
1.3. Extension. . . . . . 4
1.4. Optional Redemption. 4
1.5. Withholding Taxes. 5
1.6. Withholding Tax Exemption for Obligations
Targeted to Foreign Markets. . . . . . . 5
SALE AND PURCHASE OF NOTES 6
3. CLOSING . . . . . . . . 6
4. CONDITIONS TO CLOSING . . . . 7
4.1. Representations and Warranties. . . . 7
4.2. Performance; No Default. . . . . . 7
4.3. Compliance Certificates. . . . . . 7
4.4. Opinions of Counsel . . . . . . 7
4.5. Purchase Permitted By Applicable Law, etc. 8
4.6. Sale of Notes to Other Purchasers. . . . 8
4.7. Changes in Corporate Structure. . . . . 8
4.8. Proceedings and Documents. . . . . . 8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 8
5.1. Organization; Power and Authority. . . 9
5.2. Authorization, etc. . . . .. 9
5.3. Disclosure. . . 9
5.4. Organization and Ownership of Shares of
Subsidiaries; Affiliates.. . . . . 10
5.5. Financial Statements. . . . . . 10
5.6. Compliance with Laws, Other Instruments, etc . .11
5.7. Governmental Authorizations, etc. . . 11
5.8. Litigation; Observance of Agreements,
Statutes and Orders. . . . . 11
5.9. Taxes . . . . 11
5.10.Title to Property; Leases.. . . . 12
5.11.Licenses, Permits, etc. . . . . . 12
5.12.Compliance with ERISA . . . . . . . 13
5.13.Private Offering by the Company . . . . 13
5.14.Use of Proceeds; Margin Regulations. . . . . 14
5.15.Existing Indebtedness; Future Liens. . . . . 14
5.16.Foreign Assets Control Regulations, etc. . . 14
5.17.Status under Certain Statutes. . . . 15
5.18.Environmental Matters . . . . . 15
5.19.Status under the Internal Revenue Code of 1986 15
6. REPRESENTATIONS OF THE PURCHASER . . 16
6.1. Purchase of Notes. . . . . 16
6.2. Source of Funds. . . . 16
6.3. Independent Analysis. . . . 16
6.4. Brokers and Finders. . . . 16
6.5. Representations Relating to U.S.
Tax Withholding Obligations. . . . . 16
7. INFORMATION AS TO COMPANY.. . . . 17
7.1. Financial and Business Information. 17
7.2. Officer's Certificate. 20
7.3. Inspection. . . 21
8. PREPAYMENT OF THE NOTES. . . . 21
8.1. Prepayment in Connection with a
Change of Control . . . . 21
8.2. Allocation of Partial Prepayments . . . . 22
8.3. Maturity; Surrender, etc. 22
8.4. Purchase or Optional Redemption of Notes . . 22
9. AFFIRMATIVE COVENANTS . . . 23
9.1. Compliance with Law . . . . 23
9.2. Insurance . . . 23
9.3. Maintenance of Properties . . . 23
9.4. Payment of Taxes and Claims . . 24
9.5. Corporate Existence, etc. . . . 24
9.6. Lines of Business. . . . 24
10. NEGATIVE COVENANTS . . . . . 24
10.1. Liens . . . . . . . 24
10.2. Maintenance of Financial Conditions 26
10.3. Asset Sales . . . . 27
10.4. Merger, Consolidation, etc. 28
10.5. Subsidiary Indebtedness . . . 29
10.6. Transactions with Affiliates . . . 30
11. EVENTS OF DEFAULT. . . . . . 30
12. REMEDIES ON DEFAULT, ETC.. . . . 31
12.1. Acceleration. . . . 31
12.2. Other Remedies. . . 31
12.3. Rescission. . . . . 32
12.4. No Waivers or Election of Remedies,
Expenses, etc. 32
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES 32
13.1. Registration of Notes 32
13.2. Transfer and Exchange of Notes 33
13.3. Replacement of Notes 33
14. PAYMENTS ON NOTES. . . . . . 34
14.1. Place of Payment. . 34
14.2. Home Office Payment 34
15. EXPENSES, ETC. . . . . . . 34
15.1. Transaction Expenses 34
15.2. LIBOR Funding Losses 35
15.3. Survival. . . . . . 35
16. SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; ENTIRE
AGREEMENT . . . . . . . . 35
17. AMENDMENT AND WAIVER. . . . . 36
17.1. Requirements. . . . 36
17.2. Solicitation of Holders of Notes 36
17.3. Binding Effect, etc. 36
17.4. Notes held by Company, etc. 37
18. NOTICES. . . . . . . . . 37
19. REPRODUCTION OF DOCUMENTS. . . . 37
20. CONFIDENTIAL INFORMATION. 38
21. SUBSTITUTION OF PURCHASER. . . . 39
22. MISCELLANEOUS. . . . . . . 39
22.1. Successors and Assigns 39
22.2. Construction. . . . 39
22.3. Jurisdiction and Process. 39
22.4. Indemnification. . . 40
22.5. Accounting Terms. . 41
22.6. Payments Due on Non-Business Days 41
22.7. Severability. . . . 41
22.8. Counterparts. . . . 41
22.9. Governing Law . . . 42
Schedule A - - Names and Addresses of Purchasers
Schedule B - - Defined Terms
Exhibit 1.1(a) - - Form of Floating Rate Series C Senior
Note due 1997
Exhibit 1.6 - - Form of Certificate in Lieu of Form W-8
Exhibit 4.4(a) - - Form of Opinion of Counsel for the
Company
Exhibit 4.4(b) - - Form of Opinion of Special Counsel for
the Company
Schedule 5.3 - - Disclosure Documents
Schedule 5.4 - - Subsidiaries
Schedule 5.5 - - Financial Statements
Schedule 5.8 - - Litigation
Schedule 5.11 - - Licenses, Etc.
Schedule 5.15 - - Existing Indebtedness
SHOWBIZ PIZZA TIME, INC.
0000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Floating Rate Series C Senior Notes due 1997
As of October 10, 1995
TO BFC Bank (Cayman) Ltd.
Ladies and Gentlemen:
SHOWBIZ PIZZA TIME, INC., a Kansas corporation (the
"Company"), agrees with you as follows:
(1) THE NOTES.
(a) Authorization of Notes.
The Company has duly authorized the issue and sale of up to
$5,000,000 aggregate principal amount of its Floating Rate Series C
Senior Notes due 1997 (the "Series C Notes"), substantially in the
respective forms set out in Exhibit 1.1(a). As used herein, the
term "Notes" shall mean all notes originally delivered pursuant to
this Agreement and the Other Agreements referred to below and all
notes delivered in substitution or exchange for any such note and,
where applicable, shall include the singular number as well as the
plural. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement. The terms "Note", and "Series C Note"
shall mean one of the Notes, and Series C Notes, respectively.
Interest Rates on the Notes; Reset Procedures for Series C
Notes.
(b) Series C Notes. Each Series C Note shall bear interest,
payable quarterly on each Interest Payment Date in each year, at a
rate per annum (computed on the basis of actual days elapsed and a
year of 360 days) equal to 3.5% plus the LIBOR Rate for the
Interest Period commencing on the date of the Closing (which shall
be a period of six months), and from time to time thereafter at a
rate per annum (so computed) equal to 3.5% plus the LIBOR Rate as
in effect from time to time for the applicable Interest Period
until the principal thereof shall become due and payable and shall
bear interest on demand on any overdue principal or premium, if
any, and on any overdue installment of interest at the default rate
specified therein. If you are purchasing Series C Notes under this
Agreement, at least one Business Day before the date of the
Closing, the Company will give notice to you, specifying the
initial LIBOR Rate, which shall be determined with respect to the
date of the Closing as if that date were a Reset Date, and the
resulting applicable interest rate on the Series C Notes for the
Interest Period commencing on the date of the Closing.
The Company will give written notice to each Holder of a
Series C Note at least three Business Days prior to each Reset Date
(a "Reset Notice") specifying the duration of the Interest Period
commencing on that Reset Date. If for any reason the Company fails
to give a Reset Notice with respect to any Reset Date, the Interest
Period commencing on such Reset Date shall be deemed a six-month
period (or a three-month period in the case of the final Interest
Period if the Reset Date is three months prior to the final
maturity of the Series C Notes). On each Reset Date the Company
shall determine the LIBOR Rate for the Interest Period then
commencing and will give notice (by telephone or facsimile) to the
Calculation Holder (by telephone or facsimile to such person as the
Calculation Holder may from time to time specify for such purpose)
specifying the LIBOR Rate as so determined. If for any reason the
Calculation Holder, by notice to the Company (which notice shall be
given within two Business Days after the Reset Date), objects to
such determination, the LIBOR Rate as determined by the Calculation
Holder shall be final and binding upon the Company absent manifest
error. Forthwith and in any event within two Business Days after
each Reset Date the Company will give written notice to the Holders
of the Series C Notes specifying the LIBOR Rate and the resulting
applicable interest rate on the Series C Notes for the Interest
Period commencing on that Reset Date and stating whether the
Calculation Holder determined (or confirmed the Company's
determination of) the LIBOR Rate for that Interest Period. If for
any reason neither the Company nor the Calculation Holder
determines the LIBOR Rate for any Interest Period, the
determination of the LIBOR Rate by any other Institutional Investor
Holder of a Series C Note (acting in place of the Calculation
Holder if necessary) and specified in a written notice to the
Company shall be final and binding upon the Company and the Holders
of the Series C Notes absent manifest error, provided that in case
more than one such Institutional Investor Holder gives such a
written notice and the LIBOR Rate in such notices is not the same
rate, the LIBOR Rate shall be the rate agreed upon by such other
Institutional Investor Holders as specified in a subsequent notice
to the Company, which rate shall be final and binding as aforesaid.
(b) Certain Defined Terms and Procedures. For purposes of
determining the applicable interest rate on the Series C Notes, the
following terms have the following meanings (and certain matters
will be determined in accordance with procedures as specified
below):
"Calculation Holder" means the Institutional Investor
holding the highest unpaid principal amount of Series C Notes
at the time outstanding and willing to serve in such
capacity.
"Designated Maturity" means for any Reset Date a period
of three or six months, as the case may be, corresponding to
the Interest Period commencing on such Reset Date.
"Interest Period" means a period commencing on and
including the date of the Closing or a Reset Date, as the
case may be, and ending on the Interest Payment Date that is
three or six months thereafter, as set forth in respect of
the Interest Period commencing on the date of the Closing in
Section 1.2(a) and as set forth in respect of each Reset Date
in the Reset Notice for such period. Notwithstanding the
foregoing if the Interest Payment Date in the appropriate
month is not a Business Day such Interest Period shall be
extended to the next day that is a Business Day and if there
is no numerically corresponding date in the appropriate
month, such Interest Period shall end on the last Business
Day of such month.
"LIBOR Rate" means for the Interest Period commencing on
the date of the Closing, the rate specified in notice from
the Company given pursuant to Section 1.2(a); and means for
any Reset Date the rate for deposits in U.S. Dollars for a
period of the Designated Maturity which appears on the
display designated as "Page 3750" on Telerate Access Service
(or such other display as may replace Page 3750 on Telerate
Access Service) as of 11:00 a.m., London time, on the date
that is two London Banking Days preceding that Reset Date;
and if such rate does not appear on Telerate Page 3750 (or
such other display), the rate for that Reset Date will be
determined on the basis of rates on which deposits in U.S.
dollars are offered by the Reference Banks at approximately
11:00 a.m., London time, on the day that is two London
Banking Days preceding that Reset Date to prime banks in the
London interbank market for a period of the Designated
Maturity commencing on that Reset Date and in a
Representative Amount. The Company will cause the
Calculation Holder to request the principal London office of
each of the Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate
for that Reset Date will be the arithmetic means of the
quotations. If fewer than two quotations are provided as
requested, the rate for that Reset Date will be the
arithmetic mean of the rates quoted by major banks in New
York City, selected by the Calculation Holder, at
approximately 11:00 a.m., New York City time, on that Reset
Date for loans in U.S. dollars to leading European banks for
a period of the Designated Maturity commencing on that Reset
Date and in a Representative Amount.
"London Banking Day" means any day other than Saturday or
Sunday or a day on which commercial banks are required or
authorized by law to be closed in London, England.
"Reference Banks" means four major banks in the London
interbank market.
"Representative Amount" means an amount that is
comparable to the unpaid principal amount of the Series C
Notes at the relevant time.
"Reset Date" means any Interest Payment Date
corresponding to the first day of an Interest Period.
"Reset Notice" is defined in Section 1.2(a).
(c) Extension.
Upon notice to the Company by the Holder of any Note, given
not less than ninety (90) nor more than one hundred twenty (120)
days prior to each annual anniversary date of the Notes, the Holder
may, at its sole and absolute discretion, elect to extend the
maturity date on a Note for an additional year. If a Holder
extends the maturity date of a Note, the Company shall, upon
surrender of any such Note at the principal executive office of the
Company, execute and deliver a new Note reflecting the extended
maturity date in exchange therefor. Notwithstanding anything
herein, no extension of the maturity of the Notes under this
Section 1.3 shall extend the maturity of any of the Notes beyond
October 10, 2000.
(d) Optional Redemption.
(A) The Company shall have the right, at its option, to redeem
the Notes in whole or in part at any time and from time to time, as
provided herein and in the Notes. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a
notice of redemption by first class mail to the Holder at such
Holder's registered address. Each notice for redemption shall
identify the principal amount of the Note to be redeemed and shall
state:
1. the Redemption Date;
2. the Redemption Price;
3. the name and address of the Paying Agent;
4. that the Note called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
5. that, unless the Company defaults in making the
redemption payment, interest on the principal amount of the
Notes called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders
of such Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Notes redeemed;
6. if any Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and that,
after the Redemption Date, and upon surrender of such Note,
a new Note or Notes in aggregate principal amount equal to
the unredeemed portion thereof will be issued; and
7. if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof)
to be redeemed, as well as the aggregate principal amount of
Notes to be redeemed and the aggregate principal amount of
Notes to be outstanding after such partial redemption.
(b) Once notice of redemption is mailed in accordance with
Section 1.4(a), Notes (or any part thereof) called for redemption
become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Notes (or any part
thereof) called for redemption shall be paid at the Redemption
Price.
(c) On or before the Redemption Date, the Company shall deposit
with the Paying Agent United States dollars sufficient to pay the
Redemption Price of all Notes (or part thereof) to be redeemed on
that date (other than Notes or any part thereof called for
redemption on that date which have been delivered to the Paying
Agent for cancellation). The Paying Agent shall promptly return to
the Company any United States dollars so deposited which are not
required for that purpose upon the written request of the Company.
(d) If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption
Price, interest on the Notes (or any part thereof) to be redeemed
will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.
(e) Upon surrender of a Note that is to be redeemed in part, the
Company shall issue to the Holder, at the expense of the Company,
a new Note or Notes equal in principal amount to the unredeemed
portion of the Note surrendered.
(e) Withholding Taxes.
All payments by the Company of principal of and interest on
the Notes are payable without deduction for or on account of any
present or future taxes, duties or other charges levied or imposed
by the United States of America or by the government of any
jurisdiction outside the United States of America or by any
political subdivision or taxing authority of or in any of the
foregoing through withholding or deduction with respect to any such
payments. If any such taxes, duties or other charges are so levied
or imposed, the Company will pay additional interest or will make
additional payments in such amounts so that every net payment of
principal of and interest on the Notes, after withholding or
deduction for or on account of any such present or future taxes,
duties or other charges, will not be less than the amount provided
for herein or therein, provided that the Company shall have no
obligation to pay such additional amounts to any Holder to the
extent that such taxes, duties, or other charges are levied or
imposed by reason of the failure of such Holder to comply with the
provisions of Section 1.6. The Company shall furnish promptly to
each Holder official receipts evidencing any such withholding or
reduction.
(f) Withholding Tax Exemption for Obligations Targeted to Foreign
Markets.
Each Holder agrees that it will deliver to the Company a
certificate not more than 90 days prior to the first Interest
Payment Date, and annually thereafter on January 15 of each year
signed under oath (subject to penalty for perjury) by such Holder
and certifying that (A) the beneficial owners of the Notes are
foreign (non-U.S.) persons and have not been U.S. persons on any
Interest Payment Date, (B) during all periods while the Holder
holds the Notes, the beneficial owners of the Notes on each
Interest Payment Date will not be a U.S. person, and (C) the Holder
will provide a statement to the Company if the Notes are
transferred to a U.S. Person, notifying the Company of such event.
Such certificate shall be substantially in the form attached hereto
as Exhibit 1.6, which form complies with the requirements of
Treasury Regulation S 35a.999-5(b) (question and answer 14).
(2) SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you, as record holder on behalf of
the Beneficial Owner, and you, as record holder on behalf of the
Beneficial Owner, will purchase from the Company, at the Closing
provided for in Section 3, Series C Notes in the principal amount
or amounts specified opposite your name in Schedule A at the
purchase price of 100% of the principal amount thereof, and in the
aggregate principal amount of not more than Five Million Dollars
($5,000,000). Contemporaneously with entering into this Agreement,
the Company is entering into separate Note Purchase Agreements (the
"Other Agreements") identical with this Agreement (except for the
principal amounts of Notes to be purchased) with each of the other
purchasers named in Schedule A (the "Other Purchasers"), providing
for the sale at such Closing to each of the Other Purchasers of
Notes in the principal amount or amounts specified opposite its
name in Schedule A. Your obligation hereunder and the obligations
of the Other Purchasers under the Other Agreements are several and
not joint obligations and you shall have no obligation under any
Other Agreement and no liability to any Person for the performance
or non-performance by any Other Purchaser thereunder. The
aggregate principal amount of Notes issued and sold by the Company
under this Agreement and the Other Agreements shall not exceed U.S.
$5,000,000.
(3) CLOSING.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of Banque
Financiere de la Cite, at 9:00 a.m., Dallas, Texas time, at a
closing (the "Closing") on October 10, 1995 or on such other
Business Day thereafter on or prior to October 24, 1995 as may be
agreed upon by the Company and you and the Other Purchasers. At
the Closing the Company will deliver to you the Notes to be
purchased by you, as record holder on behalf of the Beneficial
Owner, in the form of a single Note so to be purchased (or such
greater number of Notes in denominations of at least U.S. $100,000
as you may request) dated the date of the Closing and registered in
your name (or in the name of your nominee), against delivery by you
to the Company or its order of immediately available funds in the
amount of the purchase price therefor by wire transfer of
immediately available funds (in U.S. Legal Tender) for the account
of the Company to account number 501-33529 at Bank of Boston,
Boston, Massachusetts, ABA# 000000000 (Attention: Xxxxx X'Xxxxxx
at 617-434-7996).
If at the Closing the Company shall fail to tender such Notes
to you as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to
your satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving
any rights you may have by reason of such failure or such
nonfulfillment.
(4) CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your
satisfaction, prior to or at the Closing, of the following
conditions:
(a) Representations and Warranties.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
(b) Performance; No Default.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to
be performed or complied with by it prior to or at the Closing and
after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof) no Default or Event of Default
shall have occurred and be continuing.
(c) Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered
to you an Officer's Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1, 4.2 and
4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate of the Secretary or an Assistant
Secretary of the Company certifying as to the resolutions attached
thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and this
Agreement and the Other Agreements.
(d) Opinions of Counsel.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing and addressed to
you and the Beneficial Owner from Xxxxxxxx Xxxxx, Esq., Counsel of
the Company, and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., special counsel
for the Company, substantially in the respective forms set forth in
Exhibits 4.4(a) and 4.4(b) and covering such other matters incident
to the transactions contemplated hereby as you or your counsel may
reasonably request.
(e) Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes as record
holder on behalf of the Beneficial Owner shall (a) be permitted by
the laws and regulations of each jurisdiction to which you and the
Beneficial Owner are subject, (b) not violate any applicable law or
regulation (including without limitation Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System) and (c) not
subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not
in effect on the date hereof. If requested by you, you shall have
received an Officer's Certificate certifying as to such matters of
fact as you may reasonably specify to enable you to determine
whether such purchase is so permitted.
(f) Sale of Notes to Other Purchasers.
The Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by them at the
Closing as specified in Schedule A.
(g) Changes in Corporate Structure.
The Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and
shall not have succeeded to all or any substantial part of the
liabilities of any other entity at any time following the date of
the most recent financial statements referred to in Schedule 5.5.
There has been no event, condition, or occurrence since
December 31, 1994 which, individually or in the aggregate, has had
a Material Adverse Effect and no condition exists or event has
occurred, individually or in the aggregate, that could reasonably
be expected to have a Material Adverse Effect.
(h) Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to
you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or
other copies of such documents as you or they may reasonably
request.
(5) REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that the following
are true and correct as of the date hereof and will be true and
correct through the date of the Closing as if made on such date.
(a) Organization; Power and Authority.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate
power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and the Notes and to perform the
provisions hereof and thereof.
(b) Authorization, etc.
This Agreement and the Other Agreements and the Notes have
been duly authorized by all necessary corporate action on the part
of the Company, and this Agreement constitutes, and upon execution
and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) Disclosure.
This Agreement, the documents, certificates or other writings
delivered to you by or on behalf of the Company in connection with
the transactions contemplated hereby and described in Schedule 5.3
(the "Disclosure Documents"), and the financial statements listed
in Schedule 5.5, taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of
the circumstances under which they were made. Since December 31,
1994, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any
Subsidiary except as disclosed in the Disclosure Documents or in
the financial statements listed in Schedule 5.5 and other changes
that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. There is no fact known
to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the
Disclosure Documents. Any projections provided by the Company in
the Disclosure Documents are based on assumptions which management
of the Company believes to be reasonable.
(d) Organization and Ownership of Shares of Subsidiaries;
Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete
and correct lists of the Company's (i) Subsidiaries, showing, as to
each Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by the
Company and each other Subsidiary, (ii) Affiliates, other than
Subsidiaries, and (iii) directors and senior officers.
(B) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in Schedule 5.4
as being owned by the Company and its Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by
the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and is in
good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the properties
it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than this Agreement, the
agreements listed in Schedule 5.4 and customary limitations imposed
by corporate law statutes) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or
similar equity interests of such Subsidiary.
(e) Financial Statements.
The Company has delivered to you copies of the financial
statements of the Company and its Subsidiaries listed in Schedule
5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material
respects the consolidated financial position of the Company and its
Subsidiaries as of the respective dates specified in such Schedule
and the consolidated results of their operations and cash flows for
the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto (subject, in the
case of any interim financial statements, to normal year-end
adjustments made in accordance with GAAP).
(f) Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of
this Agreement and the Notes will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of the Company or any
Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or
any of their respective properties may be bound or affected, (ii)
conflict with or result in a breach of any of the terms, conditions
or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary.
(g) Governmental Authorizations, etc.
No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required
for the validity of the execution, delivery or performance by the
Company of this Agreement or the Notes. Specifically, and without
limitation of the foregoing, no registration of the Notes is
required under the Securities Act, the Securities Exchange Act, or
the Texas Securities Act, and no indenture with respect to the
Notes is required to be qualified under the Trust Indenture Act of
1939.
(h) Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
under any term of any agreement or instrument to which it is a
party or by which it is bound, or any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority or is in
violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(i) Taxes
The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all
other taxes and assessments levied upon them or their properties,
assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) currently
payable without penalty or interest, (b) the amount of which is not
individually or in the aggregate Material or (c) the amount,
applicability or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which the
Company or a Subsidiary, as the case may be, has established
adequate reserves in accordance with GAAP. The Company knows of no
basis for any other tax or assessment that individually or in the
aggregate might be Material. The charges, accruals and reserves on
the books of the Company and its Subsidiaries in respect of
Federal, state or other taxes for all fiscal periods are adequate.
The Federal income tax liabilities of the Company and its
Subsidiaries have been determined by the Internal Revenue Service
and paid for all fiscal years up to and including the fiscal year
ended December 31, 1993.
(j) Title to Property; Leases.
The Company and its Subsidiaries have good and marketable
title to their respective real properties and good and sufficient
title to their respective other properties that individually or in
the aggregate are Material, including all such properties reflected
in the most recent audited balance sheet listed on Schedule 5.5 or
purported to have been acquired by the Company or any Subsidiary
after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens
other than the Liens disclosed on Schedule 5.15. All leases that
individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material
respects.
(k) Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents,
copyrights, service marks, trademarks and trade names, or
rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product of
the Company infringes in any material respect any license,
permit, franchise, authorization, patent, copyright, service
xxxx, trademark, trade name or other right owned by any other
Person; and
(c) to the best knowledge of the Company, there is no
Material violation by any Person of any right of the Company
or any of its Subsidiaries with respect to any patent,
copyright, service xxxx, trademark, trade name or other right
owned or used by the Company or any of its Subsidiaries.
(l) Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated
and administered each Plan in compliance with all applicable
laws except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any
ERISA Affiliate has incurred any liability pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that could reasonably be expected to
result in the incurrence of any such liability by the Company
or any ERISA Affiliate, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to
Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans (other than Multiemployer
Plans), determined as of the end of such Plan's most recently
ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent
actuarial valuation report, did not exceed the aggregate
current value of the assets of such Plan allocable to such
benefit liabilities. The term "benefit liabilities" has the
meaning specified in section 4001 of ERISA and the terms
"current value" and "present value" have the meaning
specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to
contingent withdrawal liabilities) under section 4201 or 4204
of ERISA in respect of Multiemployer Plans that individually
or in the aggregate are Material.
(d) The expected postretirement benefit obligation
(determined as of the last day of the Company's most recently
ended fiscal year in accordance with Financial Accounting
Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated
by section 4980B of the Code) of the Company and its
Subsidiaries is not Material.
(m) Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has
offered the Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other
than you and the Other Purchasers, each of which has been offered
the Notes at a private sale for investment. Neither the Company
nor anyone acting on its behalf has taken, or will take, any action
that would subject the issuance or sale of the Notes to the
registration requirements of Section 5 of the Securities Act or the
Texas Securities Act, or require registration under the Exchange
Act, or the qualification of an indenture with respect to the Notes
under the Trust Indenture Act of 1939.
(n) Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes
for general corporate purposes. No part of the proceeds from the
sale of the Notes hereunder will be used, directly or indirectly,
for the purpose of buying or carrying any margin stock within the
meaning of Regulation G or Regulation U of the Board of Governors
of the Federal Reserve System, or for the purpose of buying or
carrying or trading in any securities under such circumstances as
to involve the Company in a violation of Regulation X of said Board
or to involve any broker or dealer in a violation of Regulation T
of said Board. Margin stock does not constitute more than 5% of
the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention
that margin stock will constitute more than 5% of the value of such
assets. As used in this Section, the terms "margin stock" and
"purpose of buying or carrying" shall have the meanings assigned to
them in said Regulation U.
(o) Existing Indebtedness; Future Liens
(a) Schedule 5.15 sets forth a complete and correct list
of all outstanding Indebtedness of the Company and its
Subsidiaries as of March 31, 1995, since which date there has
been no Material change in the amounts, interest rates,
sinking funds, instalment payments or maturities of the
Indebtedness of the Company or its Subsidiaries. Neither the
Company nor any Subsidiary is in default, and no waiver of
default is currently in effect, in the payment of any
principal or interest on any Indebtedness of the Company or
such Subsidiary and no event or condition exists with respect
to any Indebtedness of the Company or any Subsidiary that
would permit (or that with notice or the lapse of time, or
both, would permit) one or more Persons to cause such
Indebtedness to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the
Company nor any Subsidiary has agreed or consented to cause
or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien not permitted by
Section 10.1.
(p) Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor
its use of the proceeds thereof will violate the Trading with the
Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(q) Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, the
Interstate Commerce Act, as amended, or the Federal Power Act, as
amended.
(r) Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any
claim or has received any notice of any claim, and no proceeding
has been instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets,
alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
Except as otherwise disclosed to you in writing prior to your
execution and delivery of this Agreement,
(a) neither the Company nor any Subsidiary has knowledge
of any facts which would give rise to any claim, public or
private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or
operated by any of them or to other assets or their use,
except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has
stored any Hazardous Materials on real properties now or
formerly owned, leased or operated by any of them and has not
disposed of any Hazardous Materials in a manner contrary to
any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse
Effect; and
(C) all buildings on all real properties now owned,
leased or operated by the Company or any of its Subsidiaries
are in compliance with applicable Environmental Laws, except
where failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
(s) Status under the Internal Revenue Code of 1986.
Assuming the accuracy of the representations and warranties,
and compliance with the covenants made by or on behalf of the
Purchaser and the Beneficial Owner under this Agreement and the
Notes, (i) each of the Notes meets the requirements of
Section 871(h)(2)(B) or 881(c)(2)(B) of the Internal Revenue Code
of 1986, as amended (the "Code"), (ii) in the case of Notes
beneficially owned by a nonresident alien individual, interest paid
on the Notes will constitute "portfolio interest" as such term is
defined in Section 871(h)(2) of the Code, and (iii) in the case of
Notes beneficially owned by a foreign corporation, interest paid on
the Notes will constitute "portfolio interest" as such term is
defined in Section 881(c)(2) of the Code.
(6) REPRESENTATIONS OF THE PURCHASER.
You represent and warrant to the Company that the following
are true and correct as of the date hereof and will be true and
correct through the date of the Closing as if made on such date.
(a) Purchase of Notes.
You represent that you are purchasing the Notes for the
account of one or more investors who to your knowledge are
"accredited investors" as such term is defined in Rule 501
promulgated under the Securities Act or to whom the sale of the
Notes would otherwise be permitted without registration under the
Securities Act pursuant to Regulation S, and not with a view to the
distribution thereof, provided that the disposition of their
property shall at all times be within their control. You
understand that the Notes have not been registered under the
Securities Act and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither
such registration nor such an exemption is required by law, and
that the Company is not required to register the Notes.
(b) Source of Funds.
You represent that to your knowledge the funds to be used by
the Beneficial Owner to pay the purchase price of the Notes to be
purchased hereunder are funds from sources legally available for
such purchase in accordance with applicable law.
(c) Independent Analysis.
You represent that to your knowledge, the Beneficial Owner
or its agent has performed its own independent analysis of the
Company and its business, financial condition, and prospects.
Brokers and Finders.
(d) You represent that there are no agent's, broker's or finder's
fees or commissions payable to you by the Company in connection
with the Notes purchased hereunder.
(e) Representations Relating to U.S. Tax Withholding Obligations.
(a) You represent that you are a bank not incorporated under
the laws of the United States of America or any State thereof.
(b) You represent that you are a securities clearing
organization, a bank, or another financial institution that holds
customers' securities in the ordinary course of your trade or
business.
(c) So long as you are the record holder of the Notes
purchased hereunder, you will promptly notify the Company of any
change, of which you have knowledge, in beneficial ownership of the
Notes purchased hereunder, and will state whether to your knowledge
any such change results in a U.S. person, firm, or corporation
becoming a beneficial owner of the Notes purchased hereunder or any
portion thereof.
(d) You represent that you have informed the Beneficial
Owner that the Notes may not be sold or transferred, except as
follows: (i) record ownership may be transferred only to another
non-U.S. bank or other entity which complies with 6.5(b) above; and
(ii) beneficial ownership may be transferred only to foreign
(non-U.S.) persons.
(e) You understand that the Notes must bear a legend
restricting ownership and transfer to only foreign (non-U.S.)
persons.
(7) INFORMATION AS TO COMPANY.
(a) Financial and Business Information.
The Company shall deliver to each Holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within two (2) Business Days
after the day that is 45 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(1) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and
its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures
for the corresponding periods in the previous fiscal year,
all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting,
in all material respects, the financial position of the
companies being reported on and their results of operations
and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period
specified above of copies of the Company's Quarterly Report
on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of
this Section 7.1(a);
(b) Annual Statements -- within two (2) Business Days
after the day that is 90 days after the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders, equity and cash flows of the Company and
its Subsidiaries for such year,
setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail,
prepared in accordance with GAAP, and accompanied
(A) by an opinion thereon of independent public
accountants of recognized national standing, which
opinion shall state that such financial statements
present fairly, in all material respects, the financial
position of the companies being reported upon and their
results of operations and cash flows and have been
prepared in conformity with GAAP, and that the
examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating that
they have reviewed Sections 10.2, 10.3, and 10.5 of this
Agreement and stating further whether, in making their
audit, they have become aware of any condition or event
that then constitutes a Default or an Event of Default
under said Sections, and, if they are aware that any such
condition or event then exists, specifying the nature and
period of the existence thereof (it being understood that
such accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of any
Default or Event of Default unless such accountants
should have obtained knowledge thereof in making an audit
in accordance with generally accepted auditing standards
or did not make such an audit),
provided that the delivery within the time period specified
above of the Company's Annual Report on Form 10-K for such
fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under
the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and
Exchange Commission, together with the accountant's
certificate described in clause (B) above, shall be deemed
to satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their
becoming available, one copy of (i) each financial statement,
report, notice or proxy statement sent by the Company or any
Subsidiary generally to its shareholders or to its creditors
(other than the Company or another Subsidiary), and (ii) each
regular or periodic report, each registration statement
(without exhibits except as expressly requested by such
Holder), and each prospectus and all amendments thereto filed
by the Company or any Subsidiary with the Securities and
Exchange Commission and of each press release and other
statement made available generally by the Company or any
Subsidiary to the public concerning developments that are
Material;
(d) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer
becoming aware of the existence of any Default or Event of
Default, a written notice specifying the nature and period
of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any
of the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not
been waived pursuant to such regulations as in effect on
the date hereof; or
(ii) the taking by the PBGC of steps to institute,
or the threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect
to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company
or any ERISA Affiliate pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition
of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or
IV of ERISA or such penalty or excise tax provisions, if
such liability or Lien, taken together with any other
such liabilities or Liens then existing, could reasonably
be expected to have a Material Adverse Effect;
(f) Accountants Reports -- promptly, and in any event
within 30 days of receipt thereof by a Responsible Officer
of the Company, copies of any report as to material
inadequacies in accounting controls submitted by independent
accountants in connection with any audit of the Company or
any Subsidiary;
(g) Material Litigation -- promptly, and in any event
within 30 days after a Responsible Officer of the Company
becomes aware of any litigation, arbitration or
administrative proceedings, whether instituted or, to the
knowledge of the Company, threatened, affecting the Company
or any of its Subsidiaries and which, if adversely
determined, could be reasonably expected to have a Material
Adverse Effect, a written statement of a Responsible Officer
describing the nature and status of such matters and what
action the Company or a Subsidiary has taken, is taking or
proposes to take with respect thereto;
(h) Notices from Governmental Authority -- promptly, and
in any event within 30 days of receipt thereof, copies of any
notice to the Company or any Subsidiary from any Federal or
state Governmental Authority relating to any order, ruling,
statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect;
(i) Requested Information -- with reasonable promptness,
such other data and information relating to the business,
operations, affairs, financial condition, assets or
properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its
obligations hereunder and under the Notes as from time to
time may be reasonably requested by any such Holder of Notes.
(b) Officer's Certificate.
Each set of financial statements delivered to a Holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be
accompanied by a certificate of a Senior Financial Officer setting
forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether
the Company was in compliance with the requirements of
Sections 10.2 and 10.3 during the quarterly or annual period
covered by the statements then being furnished (including
with respect to each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms
of such Sections, and the calculation of the amount, ratio
or percentage then in existence); and
(b) Default -- a statement that such Senior Financial
Officer has reviewed the relevant terms hereof and has made,
or caused to be made, under his or her supervision, a review
of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the
date of the certificate and that such review shall not have
disclosed the existence during such period of any condition
or event that constitutes a Default or an Event of Default
or, if any such condition or event existed or exists
(including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary
to comply with any Environmental Law), specifying the nature
and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
(c) Inspection
The Company shall permit the representatives of each Holder
of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such Holder and upon reasonable
prior notice to the Company, to visit the principal executive
office of the Company, to discuss the affairs, finances and
accounts of the Company and its Subsidiaries with the
Company's officers, and (with the consent of the Company,
which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the
Company, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Company and
each Subsidiary, all at such reasonable times and as often
as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company, to visit and inspect
any of the offices or properties of the Company or any
Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers,
employees and independent public accountants (and by this
provision the Company authorizes said accountants to discuss
the affairs, finances and accounts of the Company and its
Subsidiaries), all at such times and as often as may be
requested.
(8) PREPAYMENT OF THE NOTES
In addition to the payment of the entire unpaid principal
amount of the Notes at the final maturity thereof, the Company will
make required prepayments in respect of the Notes, and under
certain circumstances may be required to offer to prepay all Notes,
as hereinafter provided.
(a) Prepayment in Connection with a Change of Control.
Promptly and in any event within five Business Days after the
occurrence of a Change of Control, the Company will give written
notice thereof to the Holders of all outstanding Notes, which
notice shall (a) refer specifically to this Section 8.1, (b)
describe the Change of Control in reasonable detail and specify the
Change of Control Prepayment Date and the Response Date (as
respectively defined below) in respect thereof, and (c) offer to
prepay all Notes at the Redemption Price on the date therein
specified (the "Change of Control Prepayment Date"), which shall be
not less than 10 nor more than 30 days after the date of such
notice is given. In the event that the Company shall fail to give
any notice required above within five Business Days after being
requested to do so by the Holder of any Note, such Holder may give
such notice (with a copy thereof to the Company), which notice
shall have the same effect as if given by the Company. Each Holder
of a Note will notify the Company of such Holder's acceptance or
rejection of such offer by giving written notice of such acceptance
or rejection to the Company at least five days prior to the Change
of Control Prepayment Date (the "Response Date"), except that the
failure by any such Holder to respond in writing to such offer on
or before the Response Date shall be deemed to be an acceptance of
such offer by such Holder in respect of such Change of Control.
The Company shall prepay on the Change of Control Prepayment Date
all of the Notes held by the Holders as to which such offer has
been so accepted, at the Redemption Price. If any Holder shall
reject such offer, such Holder shall be deemed to have waived its
rights under this Section 8.1 to require prepayment of all Notes
held by such Holder in respect of such Change of Control but not in
respect of any subsequent Change of Control.
If the Change of Control Prepayment Date does not occur on
the last day of an Interest Period, the Company shall also pay each
Holder of a Series C Note then being prepaid an amount equal to the
LIBOR Funding Loss Amount with respect to such Series C Note, as
specified by written notice given by the Holder of such Series C
Note at least two Business Days prior to the Change of Control
Prepayment Date (or, if such notice is subsequently given by such
Holder, within two Business Days after receipt of such notice by
the Company). The obligation of the Company to pay such LIBOR
Funding Loss Amount with respect to the prepayment of any Series C
Note pursuant to this Section 8.1 shall survive the prepayment of
such Series C Note and the termination of this Agreement.
(b) Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be allocated
among all of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts
thereof.
(c) Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall
mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued
to such date. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable, together
with the interest, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full
shall be surrendered to the Company and cancelled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
(d) Purchase or Optional Redemption of Notes.
The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the
payment or prepayment of the Notes in accordance with the terms of
this Agreement and the Notes or (b) pursuant to a notice of
optional redemption pursuant to Section 1.4 hereof made by the
Company or any such Affiliate to the Holders of all Notes at the
time outstanding to redeem Notes on the same terms and conditions,
pro rata among all Notes tendered.
Any Notes so repurchased or redeemed shall immediately upon
acquisition thereof be cancelled and no Notes shall be issued in
substitution or exchange therefor, except as provided in
Section 1.4.
Promptly and in any event within five Business Days after
each such purchase or redemption of Notes, the Company will furnish
each Holder of the Notes with a certificate of a Senior Financial
Officer describing such purchase (including the aggregate principal
amount of Notes so purchased and the purchase price therefor) and
certifying that such purchase was made in compliance with the
requirements of this Section.
(9) AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
(a) Compliance with Law.
The Company will and will cause each of its Subsidiaries to
comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including without
limitation Environmental Laws, and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such
licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Insurance
The Company will and will cause each of its Subsidiaries to
maintain, with financially sound and reputable insurers rated "A"
or better by A.M. Best Company, Inc., insurance with respect to
their respective properties and businesses against such casualties
and contingencies, of such types, on such terms and in such amounts
(including deductibles and co-insurance) as is customary in the
case of entities of established reputations engaged in the same or
a similar business and similarly situated.
(c) Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to
maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such
discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to
file all tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such
returns and all other taxes, assessments, governmental charges, or
levies imposed on them or any of their properties, assets, income
or franchises, to the extent such taxes and assessments have become
due and payable and before they have become delinquent and all
claims for which sums have become due and payable that have or
might become a Lien on properties or assets of the Company or any
Subsidiary, provided that neither the Company nor any Subsidiary
need pay any such tax or assessment or claim if (i) the amount,
applicability or validity thereof is contested by the Company or
such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of
the Company or such Subsidiary or (ii) the nonpayment of all such
taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
(e) Corporate Existence, etc.
The Company will at all times preserve and keep in full force
and effect its corporate existence. Subject to Sections 10.5 and
10.6, the Company will at all times preserve and keep in full force
and effect the corporate existence of each of its Subsidiaries
(unless merged into the Company or a Subsidiary) and all rights and
franchises (as franchises) of the Company and its Subsidiaries
unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise could not, individually or
in the aggregate, have a Material Adverse Effect.
(f) Lines of Business.
The Company and its Subsidiaries will remain engaged solely
in the business of owning and operating family
restaurant/entertainment centers, and other businesses directly
related thereto.
(10) NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
(a) Liens. The Company will not, and will not permit any
Subsidiary to create, assume, incur or suffer to exist any Lien
upon or with respect to any property or assets, whether now owned
or hereafter acquired, securing any Indebtedness, provided that
nothing in this Section 10.1 shall prohibit
(i) Liens in respect of property of the Company or a
Subsidiary existing on the date of the Closing and described
in Schedule 5.15, and Liens relating to any extension,
renewal or replacement of Indebtedness secured by any such
Lien as described in Schedule 5.15, provided that the
principal amount of Indebtedness secured by any such Lien is
not increased and such Lien does not extend to or cover any
property of the Company or such Subsidiary, as the case may
be, other than the property covered by such Lien on the date
of Closing;
(ii) Liens in respect of property acquired by the Company
or a Subsidiary after the date of Closing, (A) existing on
such property at the time of acquisition thereof (and not
incurred in anticipation thereof), whether or not
Indebtedness secured thereby is assumed by the Company or a
Subsidiary, or (B) created within 180 days after acquisition
or completion of construction of improvements on such
property, to secure Indebtedness assumed or incurred to
finance all or any part of the purchase price or cost of
construction of improvements on such property, or (C) in the
case of any Person that hereafter becomes a Subsidiary or is
consolidated with or merged with or into the Company or a
Subsidiary or sells, leases or otherwise disposes of all or
substantially all of its property to the Company or a
Subsidiary, existing at the time such Person becomes a
Subsidiary or is so consolidated or merged or effects such
sale, lease or other disposition of property (and not
incurred in anticipation thereof), provided that in any such
case
(x) no such Lien shall extend to or cover any
other property of the Company or such Subsidiary,
as the case may be,
(y) the aggregate principal amount of
Indebtedness secured by all such Liens in respect
of any such property shall not exceed the cost of
such property at the time of such acquisition or,
in the case of a Lien in respect of property
existing at the time of such Person becoming a
Subsidiary or being so consolidated or merged or
effecting such sale, lease or other disposition,
the fair market value of such property at such
time, and
(z) no Lien may be created pursuant to
subclause (B) above prior to December 31, 1996;
(iii) Liens securing Indebtedness owed by a Subsidiary
to the Company or to a Wholly-Owned Subsidiary; and
(iv) Liens securing reimbursement obligations in
connection with letters of credit obtained by the Company
or a Subsidiary, provided that the aggregate unpaid
principal amount of Indebtedness in respect of such
letters of credit secured by such Liens permitted by this
Section 10.1(a)(iv) does not at any time exceed
$5,000,000.
For purposes of this Section 10.1(a) any Lien existing in respect
of property at the time such property is acquired or in respect of
property of a Person at the time such Person is acquired,
consolidated or merged with or into the Company or a Subsidiary
shall be deemed to have been created at that time.
(b) In case any property is subjected to a Lien in
violation of Section 10.1(a), the Company will make or cause
to be made effective provision whereby the Notes will be
secured equally and ratably with all Indebtedness and other
obligations secured by such Lien, and in any case the Notes
shall have the benefit, to the full extent that, and with
such priority as, the Holders may be entitled thereto under
applicable law, of an equitable lien on such property
securing the Notes. Such violation of Section 10.1(a) shall
constitute an Event of Default hereunder, whether or not any
such provision is made pursuant to this Section 10.1(b).
(b) Maintenance of Financial Conditions.
(a) The Company will not at any time prior to the last day
of the fiscal year ending on or about December 31, 1995
permit Consolidated Net Worth to be less than $115,000,000
and thereafter the Company will not at any time permit
Consolidated Net Worth to be less than the sum of (i)
$115,000,000 plus (ii) 75% of Consolidated Net Income for
each fiscal year ending after the date of the Closing (but
without any deduction for any consolidated net loss in any
fiscal year) plus (iii) 100% of the net cash proceeds of all
sales of equity securities by the Company after the date of
the Closing.
(b) The Company will not permit the sum of EBITDA plus
Consolidated Operating Lease Rentals for the periods of two
and three consecutive quarterly accounting periods
respectively ending on or about June 30 and September 30,
1995 to be less than 150% of Consolidated Interest Expense
plus Consolidated Operating Lease Rentals for such periods,
and thereafter the Company will not permit the sum of EBITDA
plus Consolidated Operating Lease Rentals for any period of
four consecutive quarterly accounting periods to be less than
the applicable percentage of the sum of Consolidated Interest
Expense plus Consolidated Operating Lease Rentals for such
period specified below:
Four Quarterly
Accounting Periods Applicable
Ending on or About Percentage
------------------ ----------
June 30, 1995 to September 30, 1996 150%
thereafter to September 30, 1997 175%
thereafter 200%
(c) The Company will not permit Consolidated
Indebtedness as of the last of any quarterly accounting
period (commencing with such accounting period ending on or
about June 30, 1995) to exceed 175% of EBITDA for the four
consecutive quarterly accounting periods then ended.
(c) Asset Sales.
The Company will not and will not permit any Subsidiary to,
directly or indirectly, make any sale, transfer, lease (as lessor),
loan or other disposition of any property or assets (an "Asset
Sale") other than
(a) Asset Sales in the ordinary course of business,
(b) Asset Sales of property or assets by a Subsidiary to
the Company or a Wholly-Owned Subsidiary or a Person then
becoming a Wholly-Owned Subsidiary,
(c) Asset Sales consisting of the Company's investment
as of the date of this Agreement in shares or Indebtedness
issued by the owner of Monterey Tex-Mex Restaurants, and
(d) other Asset Sales, provided that
(i) immediately before and after giving effect to
each such Asset Sale, no Default or Event of Default
shall have occurred and be continuing, and
(ii) the aggregate net book value of property or
assets disposed of in each such Asset Sale and all other
Asset Sales by the Company and its Subsidiaries (A)
during the immediately preceding twelve months does not
exceed 5% of Consolidated Capitalization and (B) during
the period from the date of the Closing to and including
the effective date of such proposed Asset Sale does not
exceed 10% of Consolidated Capitalization (in each case
determined as of the last day of the quarterly accounting
period ending on or most recently prior to the effective
date of such proposed Asset Sale), and
(iii) such Asset Sales in the aggregate shall not
involve a substantial number of Xxxxx X. Cheese's
restaurants (except in connection with closings in the
ordinary course of business) or any intangible assets
related to Xxxxx X. Cheese's restaurants generally,
and provided further that for purposes of clause (ii) above
there shall be excluded the net book value of property or
assets disposed of in an Asset Sale if and to the extent such
Asset Sale is made for cash, payable in full upon the
completion of such Asset Sale, and an amount equal to the net
proceeds realized upon such Asset Sale is applied by the
Company or such Subsidiary, as the case may be, within one
year after the effective date of such Asset Sale (x) to
reinvest in similar categories of property or assets for use
in the business of the Company and its Subsidiaries (but not
in a transaction Permitted by Section 10.1(a)(ii)) or (y) to
repay Indebtedness (which may, at the sole option of the
Company, include the purchase of Notes pursuant to an offer
to purchase Notes pursuant to Section 8.4).
For purposes of this Section 10.3 any shares of Voting Stock
of a Subsidiary that are the subject of an Asset Sale shall be
valued at the greater of (1) the fair market value of such shares
as determined in good faith by the Board of Directors of the
Company and (2) the aggregate net book value of the assets of such
Subsidiary multiplied by a fraction of which the numerator is the
aggregate number of shares of Voting Stock of such Subsidiary
disposed of in such Asset Sale and the denominator is the aggregate
number of shares of Voting Stock of such Subsidiary outstanding
immediately prior to such Asset Sale.
(d) Merger, Consolidation, etc.
The Company will not and will not permit any Subsidiary to
consolidate with or merge with any other corporation or convey,
transfer or lease all or substantially all of its assets in a
single transaction or series of transactions to any Person except:
(a) a Subsidiary may consolidate with or merge with,
convey or transfer all or substantially all of its assets to
(i) the Company (provided that the Company shall be
the continuing or surviving corporation) or a then
existing Wholly-Owned Subsidiary, or
(ii) any Person in an Asset Sale involving all of
the outstanding stock or all or substantially all of the
assets of such Subsidiary, in either case subject to the
limitations of Section 10.3 and to the further
requirement that such Subsidiary does not at the time of
such Asset Sale own, directly or indirectly, any shares
of capital stock or any Indebtedness of any other
Subsidiary not simultaneously being sold as part of such
Asset Sale; and
(b) the Company may consolidate with or merge with any
other corporation or convey or transfer all or substantially
all of its assets to a solvent corporation organized and
existing under the laws of the United States or any state
thereof, provided that
(i) if the Company is not the continuing, surviving
or acquiring corporation (the "surviving corporation"),
the surviving corporation shall have (A) executed and
delivered to each Holder of a Note its assumption
(pursuant to documentation in form and substance
reasonably satisfactory to the Required Holders) of the
due and punctual performance and observance of all
obligations of the Company under this Agreement, the
Other Agreements and the Notes and (B) caused to be
delivered to each Holder of a Note an opinion of counsel
reasonably satisfactory to the Required Holders to the
effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms
and comply with the terms hereof, and
(2) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing and, if applicable, the
Company shall have given any notice required in
connection with such transaction under Section 8.1.
No such conveyance, transfer or lease of substantially all of the
assets of the Company shall have the effect of releasing the
Company or any successor corporation that shall theretofore have
become such in the manner prescribed in this Section 10.4 from its
liability under this Agreement or the Notes.
(e) Subsidiary Indebtedness.
The Company will not permit any Subsidiary to create, assume
incur, guarantee or otherwise become liable in respect of any
Indebtedness except
(a) Indebtedness securing Liens permitted by clause (i),
(ii) or (iii) of Section 10.1(a), and
(b) Indebtedness of a Wholly-Owned Subsidiary owing to
the Company or another Wholly-Owned Subsidiary.
For purposes of this Section 10.5, a Subsidiary shall be deemed to
have incurred Indebtedness in respect of any obligation previously
owed to the Company or to a Wholly-Owned Subsidiary on the date the
obligee ceases for any reason to be the Company or a Wholly-Owned
Subsidiary and a Person that hereafter becomes a Subsidiary shall
be deemed at that time to have incurred all of its outstanding
Indebtedness.
(f) Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to
enter into directly or indirectly any transaction or Material group
of related transactions (including without limitation the purchase,
lease, sale or exchange of properties of any kind or the rendering
of any service) with any Affiliate (other than the Company or
another Subsidiary), except in the ordinary course and pursuant to
the reasonable requirements of the Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
(11) EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal
or premium on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest
on any Note for more than five Business Days after the same
becomes due and payable; or
(c) the Company defaults in the performance of or
compliance with any term contained in Section 7.1(d),
Section 8.1 or Section 10.1 to 10.5, inclusive; or
(d) the Company defaults in the performance of or
compliance with any term contained herein (other than those
referred to in paragraphs (a), (b) and (c) of this Section
11) and such default is not remedied within 30 days after a
Responsible Officer obtaining actual knowledge of such
default; or
(e) any representation or warranty made in writing by or
on behalf of the Company or by any officer of the Company in
this Agreement or in any writing furnished in connection with
the transactions contemplated hereby proves to have been
false or incorrect in any material respect on the date as of
which made; or
(f) the Company or any Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts
as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief
or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other
similar law of any jurisdiction, (iii) makes an assignment
for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(g) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by
the Company or any Subsidiary, a custodian, receiver, trustee
or other officer with similar powers with respect to it or
with respect to any substantial part of its property, or
constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any
Subsidiary, or any such petition shall be filed against the
Company or any Subsidiary and such petition shall not be
dismissed within 60 days; or
(h) a final judgment or judgments for the payment of
money aggregating in excess of $500,000 are rendered against
one or more of the Company and its Subsidiaries which
judgments are not, within 60 days after entry thereof,
bonded, paid, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay;
or
(12) REMEDIES ON DEFAULT, ETC.
(a) Acceleration.
If any Event of Default has occurred and is continuing, the
Required Holders of the Notes may at any time at its or their
option, by notice or notices to the Company, declare all the Notes
at the time outstanding to be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such Notes
will forthwith mature and the entire unpaid principal amount of
such Notes, plus (x) all accrued and unpaid interest thereon and
the LIBOR Funding Loss Amount for each Series C Note (in each case
to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which are
hereby waived.
(b) Other Remedies.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1,
the Holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such Holder by an action at law,
suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.
(c) Rescission.
At any time after any Notes have been declared due and
payable pursuant to Section 12.1, the Required Holders by written
notice to the Company, may rescind and annul any such declaration
and its consequences if (a) the Company has paid all overdue
interest on the Notes, all principal of any Notes that are due and
payable and are unpaid other than by reason of such declaration,
and all interest on such overdue principal and (to the extent
permitted by applicable law) any overdue interest in respect of the
Notes, at the respective default rates specified in the Notes, (b)
all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration,
have been cured or have been waived pursuant to Section 17, and (c)
no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right
consequent thereon.
(d) No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any Holder
of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such Holder's rights,
powers or remedies. No right, power or remedy conferred by this
Agreement or by any Note upon any Holder thereof shall be exclusive
of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under
Section 15, the Company will pay to the Holder of each Note on
demand such further amount as shall be sufficient to cover all
costs and expenses of such Holder incurred in any enforcement or
collection under this Section 12, including without limitation
reasonable attorneys' fees, expenses and disbursements.
(13) REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
(a) Registration of Notes.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of
Notes. The name and address of each Holder of one or more Notes,
each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior
to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated
as the owner and Holder thereof for all purposes hereof, and the
Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any Holder of a Note that is
an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all
registered Holders of Notes.
(b) Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the
case of a surrender for registration of transfer, duly endorsed or
accompanied by a written instrument of transfer duly executed by
the registered Holder of such Note or his attorney duly authorized
in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute
and deliver, at the Company's expense (except as provided below),
one or more new Notes (as requested by the Holder thereof) in
exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new
Note shall be payable to such Person as such Holder may request.
Each such new Note shall be dated and bear interest from the date
to which interest shall have been paid on the surrendered Note or
dated the date of the surrendered Note if no interest shall have
been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in
respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $100,000, provided that
if necessary to enable the registration of transfer by a Holder of
its entire holding of Notes, one Note may be in a denomination of
less than $100,000.
You agree that the Company shall not be required to register
the transfer of any Note to any Person (other than your nominee) or
to any separate account maintained by you unless the Company
receives from the transferee a representation to the Company (and
appropriate information as to any separate accounts or other
matters) to the same or similar effect with respect to the
transferee as is contained in Section 6.2. You shall not be liable
for any damages in connection with any such representations or
assurances provided to the Company by any transferee.
(c) Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in
the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the
Holder of such Note is, or is a nominee for, an original
Purchaser or any other Institutional Investor, such Person's
own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu
thereof, a new Note of the same series, dated and bearing interest
from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost,
stolen, destroyed or mutilated Note if no interest shall have been
paid thereon.
(14) PAYMENTS ON NOTES.
(a) Place of Payment.
Subject to Section 14.2, payments of principal, premium, if
any, and interest becoming due and payable on the Notes shall be
made in the State of Texas at the principal office of the Company
in such jurisdiction. The Company may at any time, by notice to
each Holder of a Note, change the place of payment of the Notes so
long as such place of payment shall be either the principal office
of the Company in such jurisdiction or the principal office of a
bank or trust company in such jurisdiction.
(b) Home Office Payment.
So long as you or your nominee shall be the Holder of any
Note, and notwithstanding anything contained in Section 14.1 or in
such Note to the contrary, the Company will pay all sums becoming
due on such Note for principal and interest by the method and at
the address specified for such purpose below your name in Schedule
A, or by such other method or at such other address as you shall
have from time to time specified to the Company in writing for such
purpose, without the presentation or surrender of such Note or the
making of any notation thereon, except that upon written request of
the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such
Note for cancellation, reasonably promptly after any such request,
to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to
Section 14.1. Prior to any sale or other disposition of any Note
held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last
date to which interest has been paid thereon or surrender such Note
to the Company in exchange for a new Note or Notes pursuant to
Section 13.2. The Company will afford the benefits of this
Section 14.2 to any Institutional Investor that is the direct or
indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such
Note as you have made in this Section 14.2.
(15) EXPENSES, ETC.
(a) Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including
reasonable attorneys and, if reasonably required, local or other
counsel) incurred by you and each Other Purchaser or Holder of a
Note in connection with such transactions and in connection with
any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or
consent becomes effective), including without limitation: (a) the
costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or
other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being
a Holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company will pay, and
will save you and each other Holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
(b) LIBOR Funding Losses.
The Company will pay each Holder of a Series C Note, within
two Business Days after demand therefor, such amount (the "LIBOR
Funding Loss Amount") as in the good faith determination by such
Holder will compensate such Holder for any loss or reasonable
expense such Holder may sustain as a consequence of the receipt or
recovery for any reason (including without limitation a prepayment
pursuant to Section 8.1 or acceleration pursuant to Section 12.1)
of all or any part of payment on account of such Series C Note
prior to the last day of the applicable Interest Period therefor,
including without limitation any loss or expense sustained or
incurred in liquidating a Swap or any loss of margin on
reemployment of the funds so received or recovered.
(c) Survival.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the
Notes, and the termination of this Agreement.
(16) SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes,
the purchase or transfer by you of any Note or portion thereof or
interest therein and the payment of any Note, and may be relied
upon by any subsequent Holder of a Note, regardless of any
investigation made at any time by or on behalf of you or any other
Holder of a Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant
to this Agreement shall be deemed representations and warranties of
the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement
and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter
hereof.
17. AMENDMENT AND WAIVER.
(a) Requirements.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21, or any defined term (as it is used therein), will be
effective as to you unless consented to by you in writing, and (b)
no such amendment or waiver may, without the written consent of the
Holder of each Note at the time outstanding affected thereby, (i)
subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment
of principal of, or change the rate or the time of payment or
method of computation of interest on, the Notes, (ii) change the
percentage of the principal amount of the Notes the Holders of
which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
(b) Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each Holder
of the Notes (irrespective of the amount of Notes then owned
by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such
Holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of
each amendment, waiver or consent effected pursuant to the
provisions of this Section 17 to each Holder of outstanding
Notes promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the
requisite Holders of Notes.
(b) Payment. The Company will not directly or indirectly
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or
grant any security, to any Holder of Notes as consideration
for or as an inducement to the entering into by any Holder
of Notes or any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently
paid, or security is concurrently granted, on the same terms
(or no less favorable terms taking into account differences
in the terms of the Notes), ratably to each Holder of Notes
then outstanding even if such Holder did not consent to such
waiver or amendment.
(c) Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all Holders of Notes and is binding
upon them and upon each future Holder of any Note and upon the
Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement,
Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between
the Company and the Holder of any Note nor any delay in exercising
any rights hereunder or under any Note shall operate as a waiver of
any rights of any Holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement
as it may from time to time be amended or supplemented.
(d) Notes held by Company, etc.
Solely for the purpose of determining whether the Holders of
the requisite percentage of the aggregate principal amount of Notes
then outstanding approved or consented to any amendment, waiver or
consent to be given under this Agreement or the Notes, or have
directed the taking of any action provided herein or in the Notes
to be taken upon the direction of the Holders of a specified
percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or
any of its Affiliates shall be deemed not to be outstanding.
(18) NOTICES.
All notices and communications provided for hereunder shall
be in writing and sent (a) by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered
or certified mail with return receipt requested (postage prepaid),
or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications in Schedule A, or
at such other address as you or it shall have specified to
the Company in writing,
(ii) if to any other Holder of any Note, to such Holder
at such address as such other Holder shall have specified to
the Company in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of the Chief
Financial officer, or at such other address as the Company
shall have specified to the Holder Of each Note in writing.
Notices under this Section 18 will be deemed given only when
actually received.
(19) REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that
may hereafter be executed, (b) documents received by you at the
Closing (except the Notes themselves), and (c) financial
statements, certificates and other information previously or
hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and you may destroy any
original document so reproduced. The Company agrees and stipulates
that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself
in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by you in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not
prohibit the Company or any other Holder of Notes from contesting
any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the
inaccuracy of any such reproduction.
(20) CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of
the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or
otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act
or omission by you or any person acting on your behalf, (c)
otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements
delivered to you under Section 7.1 that are otherwise publicly
available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by
you in good faith to protect confidential information of third
parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, trustees,
employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors
and other professional advisors whose duties require them to hold
confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (iii) any other
Holder of any Note, (iv) any Institutional Investor to which you
sell or offer to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (v) any Person from which you offer
to purchase any security of the Company (if such Person has agreed
in writing prior to its receipt of such Confidential Information to
be bound by the provisions of this Section 20), (vi) any federal or
state regulatory authority having jurisdiction over you, (vii) any
nationally recognized rating agency that requires access to
information about your investment portfolio or (viii) any other
Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under
your Notes and this Agreement. Each Holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by the
Company in connection with the delivery to any Holder of a Note of
information required to be delivered to such Holder under this
Agreement or requested by such Holder (other than a Holder that is
a party to this Agreement or its nominee), such Holder will enter
into an agreement with the Company embodying the provisions of this
Section 20.
(21) SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
non-United States Affiliates as the purchaser of the Notes that you
have agreed to purchase as record holder on behalf of the
Beneficial Owner hereunder, by written notice to the Company, which
notice shall be signed by both you and such Affiliate, shall
contain such Affiliate's agreement to be bound by this Agreement
and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in
this Agreement (other than in this Section 21), such word shall be
deemed to refer to such Affiliate in lieu of you. In the event
that such Affiliate is so substituted as a purchaser hereunder and
such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of
such transfer, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall no longer be
deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original Holder of the Notes under
this Agreement.
(22) MISCELLANEOUS.
(a) Successors and Assigns.
All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and
inure to the benefit of their respective successors and assigns
(including without limitation any subsequent Holder of a Note)
whether so expressed or not.
(b) Construction.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each
other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly
by such Person.
(c) Jurisdiction and Process.
(a) The Company irrevocably submits to the non-exclusive in
personal jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan, The City of New York,
over any suit, action or proceeding arising out of or
relating to this Agreement or the Notes. To the fullest
extent permitted by applicable law, the Company irrevocably
waives and agrees not to assert, by way of motion, as a
defense or otherwise, any claim that it is not subject to the
in personam jurisdiction of any such court, any objection
that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum.
(b) The Company agrees, to the fullest extent permitted
by applicable law, that a final judgment in any suit, action
or proceeding of the nature referred to in Section 22.3(a)
brought in any such court shall be conclusive and binding
upon the Company subject to rights of appeal, as the case may
be, and may be enforced in the courts of the United States
of America or the State of New York (or any other courts to
the jurisdiction of which the Company is or may be subject)
by a suit upon such judgment.
(c) The Company consents to process being served in any
suit, action or proceeding of the nature referred to in
Section 22.3(a) by mailing a copy thereof by registered or
certified mail, postage prepaid, return receipt requested,
to the Company at its address specified in Section 18 or at
such other address of which you shall then have been notified
pursuant to said Section. The Company agrees that such
service upon receipt (i) shall be deemed in every respect
effective service of process upon it in any such suit, action
or proceeding and (ii) shall, to the fullest extent permitted
by applicable law, be taken and held to be valid personal
service upon and personal delivery to the Company. Notices
hereunder shall be conclusively presumed received as
evidenced by a delivery receipt furnished by the United
States Postal Service or any reputable commercial delivery
service.
(d) Nothing in this Section 22.3 shall affect the right
of any holder of a Note to serve process in any manner
permitted by law, or limit any right that the holders of any
of the Notes may have to bring proceedings against the
Company in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
(d) Indemnification.
The Company agrees, to the extent permitted by applicable
law, to indemnify, exonerate, defend and hold you and each of your
officers, directors, trustees, employees and agents (collectively
the "Indemnitees" and individually an "Indemnitee") free and
harmless from and against any and all actions, causes of action,
suits, losses, liabilities and damages, and expenses in connection
therewith, including without limitation reasonable fees and
disbursements of a single firm to act as special counsel for all
Indemnitees or, if there shall exist a legitimate conflict in the
interests of the Indemnitees, the reasonable fees and disbursements
of more than one special counsel (collectively the "Indemnified
Liabilities") incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to, the execution,
delivery, performance or enforcement of this Agreement, the Notes
or any other instrument contemplated hereby by any of the
Indemnitees, or any transaction financed or to be financed in whole
or in part directly or indirectly with proceeds from the sale of
any of the Notes, or any action taken or omitted by an Indemnitee
in the capacity of Calculation Holder (or acting in place of the
Calculation Holder as contemplated by Section 1.1(b)), except as to
any Indemnitee for any such Indemnified Liabilities arising on
account of such Indemnitee's gross negligence or willful
misconduct; and if and to the extent the foregoing undertaking may
be unenforceable for any reason, the Company agrees to make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
The obligations of the Company under this Section shall survive the
payment of the Notes.
(e) Accounting Terms.
All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to
them in accordance with GAAP. Except as otherwise specifically
provided herein, all computations made pursuant to this Agreement
shall be made in accordance with GAAP and all balance sheets and
other financial statements with respect thereto shall be prepared
in accordance with GAAP. Except as otherwise expressly provided,
any consolidated financial statement or financial computation shall
be done in accordance with GAAP; and, if at the time that any such
statement or computation is required to be made the Company shall
not have any Subsidiary, such terms shall mean a financial
statement or a financial computation, as the case may be, with
respect to the Company only.
(f) Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or interest on any
Note that is due on a date other than a Business Day shall be made
on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
(g) Severability.
Any provision of this Agreement that 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, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other
jurisdiction.
(h) Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
(i) Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAWS OF THE STATE OF TEXAS EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
If you are in agreement with the foregoing, please sign the
form of agreement in the space below provided on a counterpart of
this Agreement and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and the
Company.
Very truly yours,
SHOWBIZ PIZZA TIME, INC.
By:
Title:
The foregoing is hereby agreed to
as of the date thereof.
BFC BANK (CAYMAN) LTD.
By:
SCHEDULE A
This Schedule A shows the names and addresses of the
Purchasers under the foregoing Note Purchase Agreement and the
other Agreements referred to therein and the respective principal
amounts of the Series C Notes to be purchased by each.
Name and Address of Purchaser Principal Amount of Series C
Notes to be Purchased
--------------------------------------------------------------
BFC Bank (Cayman) Ltd. $2,500,000
(1) All payments by Fedwire
transfer of immediately
available funds, identifying
the name of the Issuer (and
the Credit, if any), and the
payment as principal,
interest or premium, in the
format as follows:
Bank: Credit Suisse
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
ABA Routing No.: 000000000
For Credit To: BFC Bank
(Cayman) Ltd.
Account No.: 00000000
For further
Credit to: Relle, Account
Number 14600-5
(2) Address for all
correspondence and notices:
BFC Bank (Cayman) Ltd.
c/o Banque Financiere de la
Cite
Courier or Hand Delivery:
0, xxx xxx Xxxxxxx, xx X'Xxx
0000 Xxxxxx
Xxxxxxxxxxx
Mail:
C.P. 5030
1211 Xxxxxx 00
Xxxxxxxxxxx
Telephone: (0000) 000-0000
Facsimile: (0000) 000-0000
Attention: Xx. Xxxxxx
Xxxxxxxxxx or
Xx. Xxxxxx
Xxxxxxxxxxx
[___________ ] Neue Bank $2,500,000
(1) All payments on account of
the Notes shall be made by
crediting in the form of bank
wire transfer of Federal or
other immediately available
funds (identifying each
payment as ShowBiz Pizza
Time, Inc. Floating Rate
Series C Senior Notes due
1997 interest and principal
to:
_____________________
_____________________
_____________________
_____________________
For credit as follows:
With telephone advice of
payment to:
(2) All notices and
communications to be
addressed to:
(3) Notices with respect to
payments and corporate
actions to be addressed as
provided in clause (2)
above:
___________________
___________________
(4) Tax Identification Number
SCHEDULE B
DEFINED TERMS
--------------
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"Affiliate" means, at any time, and with respect to any
Person, (a) any other Person that at such time directly or
indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person,
and (b) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests
of the Company or any Subsidiary or any corporation of which the
Company and its Subsidiaries beneficially own or hold, in the
aggregate, directly or indirectly, 10% or more of any class of
voting or equity interests. As used in this definition, "Control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an
Affiliate of the Company.
"Beneficial Owner" means the beneficial owner of the Notes
purchased hereunder.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which commercial banks in London, England, Dallas,
Texas, Cayman Islands, Geneva, Switzerland, or Liechtenstein are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the
acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
"Capitalized Lease Obligations" means with respect to any
Person, all outstanding obligations of such Person in respect of
Capital Leases, taken at the capitalized amount thereof accounted
for as indebtedness in accordance with GAAP.
"Change of Control" means (a) the acquisition through purchase
or otherwise (including the agreement to act in concert without
more), by any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act) directly or indirectly, in one
or more transactions, of the beneficial ownership or control of
securities representing more than 25% of the combined voting power
of the Company's Voting Stock or (b) the acquisition by any Person,
entity or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act), of the power (whether or not exercised) to elect
a majority of the Board of Directors of the Company. For purposes
of this definition "beneficial ownership" shall have the meaning
set forth in Rule 13d-3 of the Securities and Exchange Commission
adopted pursuant to the Exchange Act.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated
thereunder from time to time.
"Company" means ShowBiz Pizza Time, Inc., a Kansas
corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Capitalization" means, at any date, the sum of
(a) Consolidated Indebtedness plus (b) Consolidated Net Worth plus
(c) deferred tax liabilities (if any), all as determined on a
consolidated basis for the Company and its Subsidiaries in
accordance with GAAP.
"Consolidated Indebtedness" means, at any date, all
Indebtedness of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" for any period means the sum
for the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, of all amounts which would be
deducted in computing Consolidated Net Income on account of
interest on Indebtedness (including imputed interest in respect of
Capitalized Lease Obligations and amortization of debt discount and
expense).
"Consolidated Net Income" for any period means the net income
of the Company and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP, excluding
(a) the proceeds of any life insurance policy,
(b) any gains arising from (i) the sale or other
disposition of any assets (other than current assets) to the
extent that the aggregate amount of the gains during such
period exceeds the aggregate amount of the losses during such
period from the sale, abandonment or other disposition of
assets (other than current assets), (ii) any write-up of
assets or (iii) the acquisition of outstanding securities of
the Company or any Subsidiary,
(c) any amount representing any interest in the
undistributed earnings of any other Person (other than a
Subsidiary),
(d) any earnings, prior to the date of acquisition, of
any Person acquired in any manner, and any earnings of any
Subsidiary acquired prior to its becoming a Subsidiary,
(e) any earnings of a successor to or transferee of the
assets of the Company prior to its becoming such successor or
transferee,
(f) any deferred credit (or amortization of a deferred
charge or credit) arising from the acquisition of any Person,
and
(g) any extraordinary gains not covered by clause (b)
above.
"Consolidated Net Worth" means, at any date, on a consolidated
basis for the Company and its Subsidiaries, (a) the sum of (i)
capital stock taken at par or stated value plus (ii) capital in
excess of par or stated value relating to capital stock plus (iii)
retained earnings (or minus any retained earning deficit) minus (b)
the sum of treasury stock, capital stock subscribed for and
unissued, deferred compensation and other contra-equity accounts,
all determined in accordance with GAAP.
"Consolidated Operating Lease Rentals" for any period means
the sum of the rental and other obligations required to be paid by
the Company and its Subsidiaries as lessee under all leases of real
or personal property (other than Capital Leases), excluding any
amounts required to be paid by the lessee (whether or not therein
designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges, all determined on a consolidated basis in
accordance with GAAP.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"EBITDA" for any period means Consolidated Net Income plus all
amounts deducted in the computation thereof on account of (a)
Consolidated Interest Expense, (b) depreciation and amortization
expenses (including amortization of deferred compensation) and
other non-cash charges, (c) income and profits taxes and (d)
extraordinary losses (if any) of the type described in clauses (b)
through (g) of the definition of "Consolidated Net Income" that are
deducted in determining Consolidated Net Income for such period.
"Environmental Laws" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not
limited to those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with
the Company under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or
which asserts jurisdiction over any properties of the
Company or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation
(except the endorsement 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 in any manner, whether
directly or indirectly, including without limitation obligations
incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to
maintain any working capital or other balance sheet condition
or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase
or payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of any other
Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness
or obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the
obligor under any Guaranty, the Indebtedness or other obligations
that are the subject of such Guaranty shall be assumed to be direct
obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard
to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing,
treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of
which is or shall be restricted, prohibited or penalized by any
applicable law (including without limitation asbestos, urea
formaldehyde foam insulation and polycholorinated biphenyls).
"Holder" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the
Company pursuant to Section 13.1.
"Indebtedness" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money,
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business and not overdue but
including all liabilities created or arising under any
conditional sale or other title retention agreement with
respect to any such property),
(c) its Capitalized Lease Obligations,
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person
(whether or not it has assumed or otherwise become liable for
such liabilities),
(e) all its liabilities in respect of letters of credit
or instruments serving a similar function issued or accepted
for its account by banks and other financial institutions
(whether or not representing obligations for borrowed money),
(f) Swaps of such Person, and
(g) any Guaranty of Such Person with respect to
liabilities of a type described in any of clauses (a) through
(f) above.
Indebtedness of any Person shall include all obligations of such
Person of the character described in clauses (a) through (g) above
to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be
extinguished under GAAP. Indebtedness shall not include any
obligations under operating lease agreements.
"Institutional Investor" means (a) any original purchaser of
a Note, (b) any holder of a Note holding more than 1% of the
aggregate principal amount of the Notes then outstanding, and (c)
any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company,
any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Interest Payment Date" means each March 31, June 30,
September 30 and December 31.
"Interest Period" is defined in Section 1.1(c).
"LIBOR Funding Loss Amount" is defined in Section 15.2.
"LIBOR Rate" is defined in Section 1.1(c).
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any
interest or title of any vendor, lessor, lender or other secured
party to or of such Person under any conditional sale or other
title retention agreement or Capital Lease, upon or with respect to
any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all
similar arrangements).
"Material" means material in relation to the business,
operations, affairs, financial condition, profits, assets,
properties or prospects of the Company and its Subsidiaries taken
as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, affairs, financial condition,
profits, assets, properties or prospects of the Company and its
Subsidiaries taken as a whole, (b) the ability of the Company to
perform its obligations under this Agreement and the Notes or (c)
the validity or enforceability of this Agreement or the Notes.
"Multiemployer Plan" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.1.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"Paying Agent" shall be a bank, trust company, or other
financial institution, at which this Note may be surrendered for
payment. At its option, the Company may act as its own Paying
Agent.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"Plan" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has
been established or maintained, or to which contributions are or,
within the preceding five years, have been made or required to be
made, by the Company or any ERISA Affiliate or with respect to
which the Company or any ERISA Affiliate may have any liability.
"Property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, xxxxxx or inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption
84-14 issued on March 13, 1984 by the United States Department of
Labor.
"Redemption Date" means the date fixed for redemption of any
principal amount of the Notes, pursuant to the terms of this
Agreement and the Notes.
"Redemption Price" means, with respect to any purchase,
redemption, or prepayment of all or any part of the Notes, the
price fixed for redemption in accordance with the terms of the
Notes.
"Required Holders" means, at any time, the holders of at least
a majority in unpaid principal amount of the Notes at the time
outstanding.
"Reset Date" is defined in Section 1.2(c).
"Responsible Officer" means any Senior Financial Officer and
any other officer of the Company with responsibility for the
administration of the relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the
Company.
"Series C Notes" is defined in Section 1.1.
"Subsidiary" means, as to any Person, any corporation or other
business entity a majority of the combined voting power of all
Voting Stock of which is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries.
Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Swaps" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the
purposes of this Agreement, the amount of the obligation under any
Swap shall be the amount determined in respect thereof as of the
end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of
such fiscal quarter, and in making such determination, if any
agreement relating to such Swap provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement
provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall
be the net amount so determined.
"U.S. Legal Tender" means United States dollars or such coin
or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private
debts in the United States of America.
"Voting Stock" means, with respect to any Person, any shares
of stock or other equity interests of any class or classes of such
Person whose holders are entitled under ordinary circumstances
(irrespective of whether at the time stock or other equity
interests of any other class or classes shall have or might have
voting power by reason of the happening of any contingency) to vote
for the election of a majority of the directors, managers, trustees
or other governing body of such Person.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary
all of the equity interests (except directors' qualifying shares)
and voting interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Subsidiaries at such
time.
[FORM OF SERIES C NOTE]
SHOWBIZ PIZZA TIME, INC.
FLOATING RATE SERIES C SENIOR NOTE DUE 1997
No. [ ] [ ]
$ [ ] [Date]
PPN [ ]
BENEFICIAL OWNERSHIP OF THIS NOTE MAY ONLY BE TRANSFERRED TO A
PERSON WHO IS NOT A RESIDENT OR CITIZEN OF THE UNITED STATES OF
AMERICA, OR TO A BANK, OR OTHER INSTITUTION OR ENTITY WHICH IS NOT
INCORPORATED OR ORGANIZED UNDER THE LAWS OF THE UNITED STATES OF
AMERICA OR ANY STATE THEREOF. THIS NOTE WAS OFFERED FOR SALE IN
CONNECTION WITH ITS ORIGINAL ISSUANCE ONLY OUTSIDE THE UNITED
STATES AND HAS BEEN DELIVERED TO THE HOLDER OUTSIDE THE UNITED
STATES.
FOR VALUE RECEIVED, the undersigned, SHOWBIZ PIZZA TIME, INC.
(the "Company"), a Kansas corporation, hereby promises to pay to
[____________________], or registered assigns, the principal amount
of [____________________________________________] DOLLARS on
July 31, 1997, with interest (computed on the basis of actual days
elapsed and a year of 360 days) (a) from the date hereof on the
unpaid balance thereof, payable quarterly on each Interest Payment
Date (as below defined), at a rate per annum for each Interest
Period (as defined in the Note Purchase Agreements referred to
below) equal to 3.5% plus the LIBOR Rate (as so defined) as
determined in respect of such Interest Period pursuant to said Note
Purchase Agreements, until the principal hereof shall have become
due and payable, and (b) on any overdue payment of principal or (to
the extent permitted by applicable law) interest, payable quarterly
as aforesaid (or, at the option of the registered holder hereof, on
demand) at a rate per annum from time to time equal to 2% above the
interest rate then applicable to this Note, from the date of such
default to and including the last day of the Interest Period during
which such default occurs and thereafter at a rate per annum equal
to 5.5% above said LIBOR Rate (as so determined from time to time
on the basis of three-month Interest Periods).
[The LIBOR Rate for the [six]-month Interest Period commencing
on the date of this Note is ____%.]
As used herein the term "Interest Payment Date" means each
March 31, June 30, September 30 and December 31, beginning
December 31, 1995.
Payments of principal of, interest on and any premium with
respect to this Note are to be made in lawful money of the United
States of America at the principal office of [__________] in
[__________] or at such other place outside the United States as
the Company shall have designated by written notice to the holder
of this Note as provided in the Note Purchase Agreements referred
to below.
This Note is one of a series of Senior Notes issued pursuant
to separate Note Purchase Agreements dated as of _______ __, 1995
(as from time to time amended, the "Note Purchase Agreements")
between the Company and the respective Purchasers named therein and
is entitled to the benefits thereof. Each holder of this Note will
be deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 20 of the Note
Purchase Agreements.
Pursuant to the Note Purchase Agreements the Company is
required to give written notice to the holder of this Note of the
duration of each Interest Period for this Note, and of the
applicable interest rate for such Interest Period as determined on
the Reset Date (as defined in the Note Purchase Agreement) for such
Interest Period. The applicable LIBOR Rate and interest rate and
duration of such Interest Period for this Note shall be endorsed by
the holder of this Note on the schedule attached hereto or any
continuation thereof prior to any transfer of this Note.
This Note is a registered Note and, as provided in the Note
Purchase Agreements, upon surrender of this Note for registration
of transfer duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or such
holder's attorney duly authorized in writing, a new note for a like
principal amount will be issued to, and registered in the name of,
the transferee, provided that record ownership may only be
transferred to a bank or other entity which meets the requirements
of Section 6.5 of the Note Purchase Agreement. Prior to due
presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes,
and the Company will not be affected by any notice to the contrary.
This Note may be redeemed at the option of the Company, at any
time in whole or from time to time in part, for an amount equal to
the then unpaid principal amount of this Note, plus accrued and
unpaid interest (if any) to the date of redemption (subject to the
rights of holders of record on the relevant record date to receive
interest due on the relevant interest payment date). Notice of
redemption will be mailed at least 30 days but not more than 60
days before the redemption date to the holder of this Note at such
holder's registered address. Except as set forth in the Note
Purchase Agreements, from and after any redemption date, if monies
for the redemption shall have been deposited with the Paying Agent
for redemption on such redemption date, then, unless the Company
defaults in the payment of such redemption price, principal amount
called for redemption will cease to bear interest and the only
right of the holders as to such principal amount will be to receive
payment of the redemption price.
The Company is also required under circumstances described in
the Note Purchase Agreements to offer to prepay all Notes on the
terms specified in the Note Purchase Agreements.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the manner,
at the price and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with,
and the rights of the Company and the holder hereof shall be
governed by, the laws of the State of [Texas], excluding
choice-of-law principles of such law.
SHOWBIZ PIZZA TIME, INC.
By
Title:
Schedule of Interest Rate and Duration of Interest Period
--------------------------------------------------------
Reset Date Duration of
Interest Period
(LIBOR Rate 3.5%)
Notation
Made By
EXHIBIT 1.6
CERTIFICATE IN LIEU OF FORM W-8
[Please print or type]
Name:______________________________________________________________
Address:__________________________________________________________
___________________________________________________________________
Type of Entity (Please check appropriate box):
_ Non-U.S. Bank _ Foreign branch of a U.S. Bank
_ Other (please describe)_____________________________________
(i) The undersigned is a record holder of the Floating Rate Series
C Senior Notes due 1997 (the "Notes") issued by ShowBiz Pizza
Time, Inc., a Kansas corporation (the "Company").
(ii) The outstanding principal amount of the Notes of which the
undersigned is record holder is: U.S. $
(iii The beneficial owners of the Notes are foreign (non-U.S.)
persons and have not been U.S. persons on any Interest Payment
Date (as that term is defined in the Note Purchase Agreement
dated October _____, 1995).
(iv) During all periods that the undersigned is a record holder of
the Notes, the beneficial owners of the Notes will not be U.S.
persons on any Interest Payment Date.
(v) The undersigned will provide a U.S. beneficial ownership
notification to the Company in the event this certification is
or becomes untrue.
(vi) This certification is signed on this _____ day of
_____________, 1995.
Under penalties of perjury, the undersigned certifies that all of
the forgoing is true and correct in every respect.
Name of Record Holder:_________________________________
Signature:_____________________________________________
Printed Name of Person signing:_________________________
Title of Person Signing:
EXHIBIT 4.4(a)
October 10, 1995
Re: ShowBiz Pizza Time, Inc.; Floating Rate Series C
Senior Notes due 1997.
To the several Purchases listed in Schedule A to Note purchase
Agreement and the Benficial Owners
Ladies and Gentlemen:
I have acted as in-house counsel to ShowBiz Pizza Time, Inc.,
a Kansas Corporation (the "Company"), in connection with the the
issuance by the Company of its Floating Rate Series C Senior Notes
due 1997 in an aggregate principal amount of $5,000,000 (the
"Notes") and purchase by you pursuant to the several Note Purchase
Agreement made by you to the Company under the date of October 10,
1995 (the "Note Purchase Agreement") of Notes in the respective
aggregate principal amounts and series specified in Schedule A to
the Note Purchase Agreement. All capitalized terms used herein
without definition shall have the meanings ascribed thereto in the
Note Purchase Agreement.
In my capacity as in-house counsel to the Company and its
subsidiaries, I have participated in the preparation of the
Agreement and the exhibits and other documents referred to therein.
I have examined such corporate documents and records of the Company
and its subsidiaries, certificates of public officials and other
certificates, opinions and instruments and have made such other
investigations as I have deemed necessary or advisable as a basis
for the opinions hereinafter expressed.
In my examination I have assumed the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified or
photostatic copies and the authenticity of the originals of such
latter documents. In addition, I have assumed the genuineness of
all signatures except signatures of representatives of the Company,
the due authorization, execution and delivery of all documents
referred to herein by parties thereto other than the Company and
the due authority of all persons executing such documents except
persons executing such documents on behalf of the Company.
Based upon the foregoing and having regard for the legal
consideration that I deem relevant, I render my opinion to you
pursuant to Section 4.4(a) of the Note Purchase Agreement as
follows:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Kansas and has all
requisite power and authority to own or hold under lease the
property its purports to own or hold under lease, to carry on its
business as now being conducted.
Letter to Beneficial Owners
October 10, 1995
Page 2 of 3
2. The Company has duly qualified and is authorized to do
business in each jurisdiction where such qualification and
authorization in necessary, except where the failure to be so
qualified and authorized, individually or in the aggregate, could
not have a Material Adverse Effect.
3. The Company has the corporate power and authority to
execute and deliver the Note Purchase Agreement and the Notes and
to perform the provisions thereof. The Note Purchase Agreement
have been duly authorized, executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the
Company and is enforceable against the Company in accordance with
their respective terms.
4. The Notes have been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company and is enforceable against the Company in
accordance with their respective terms.
5. The execution and delivery by the Company of the Note
Purchase Agreement and the performance by the Company of the
transactions to be consummated by the Company described therein
including the issuance of the Note do not conflict with or
constitute on the part of the Company a breach or a violation of
any of the terms and provisions of, or constitute (with due notice
or lapse of time or both) a default under the Articles of the
Company or Bylaws of the Company or of any indenture, agreement,
order, writ, judgment or decree known to me to which the Company is
a party or by which it or any of its properties are bound.
6. To the best of my knowledge there is no action, suit,
proceeding, inquiry or investigation at law or in equity by or
before any court or any Government Authority or public board or
body pending or threatened against or affecting the Company or any
subsidiary or any of its properties wherein an unfavorable
decision, ruling or finding (a) would adversely affect the validity
or enforceability of the Note Purchase Agreement or the Notes, (b)
might result in any materially adverse change in the operations,
properties, assets, liabilities or financial condition of the
Company, or (c) would otherwise adversely affect the capability of
the Company to comply with its obligations under the Note Purchase
Agreement.
7. Each Subsidiary is a corporation or other legal entity
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization.
Each Subsidiary has all requisite power and authority to own or
hold under lease the property it purports to own or hold under
lease and to transact the business it transacts.
Letter to Beneficial Owners
October 10, 1995
Page 3 of 3
8. Each Subsidiary has duly qualified and is authorized to
do business in each jurisdiction where such qualification and
authorization in necessary, except where the failure to be so
qualified and authorized, individually or in the aggregate, could
not have a Material Adverse Effect.
My opinion expressed in paragraph 4 above is qualified to the
extent that (a) the enforceability of the Note Purchase Agreement
and the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
from time to time affecting the rights of creditors, landlords,
and secured parties generally and providing for relief of debtors,
(b) a particular court may refuse to grant certain equitable
remedies, including, without limiting the generality of the
foregoing, specific performance, with respect to the enforcement of
any provisions of the Note Purchase Agreement or the Notes, (c)
certain provisions of the Note Purchase Agreement are or may be
unenforceable in whole or in part under the laws of the State of
Texas, but the inclusion of such provisions does not affect the
validity of the Note Purchase Agreement, and the Note Purchase
Agreement contains adequate provisions for enforcing payment of the
obligations thereunder (including payment of the Notes) and for the
practical realization of the rights and benefits afforded thereby,
and (d) the enforceability of the indemnity provisions contained in
the Note Purchase Agreement may be limited by federal securities
laws and is subject to the qualification that a state court, in
determining whether any party to an agreement is entitled to
indemnification under the terms of the agreement, will limit any
such indemnification arising from such party's sole or contributory
negligence to the express terms and conditions as set forth in the
agreement.
My opinion is limited solely to the laws of the State of Texas
and the Kansas General Corporation Code, and the laws of the United
States of America in effect on the date hereof, and no opinion is
expressed herein as to any matters governed by the laws of any
other jurisdictions.
This opinion is furnished to you solely in connection with the
transactions being consummated today pursuant to the Note Purchase
Agreement and may not be relied upon or described or quoted from by
any other person, firm or entity without, in each instance, my
prior written consent.
Very truly yours,
Xxxxxxxx X. Xxxxx, Xx.
Counsel
EXHIBIT 4.4(a)
October 10, 1995
Re: ShowBiz Pizza Time, Inc.
Floating Rate Series C Senior Notes due 1997
To the several Purchasers listed in
Schedule A to the within-mentioned
Note Purchase Agreement and
the Beneficial Owner
Ladies and Gentlemen:
We have acted as special counsel to ShowBiz Pizza Time, Inc. (the
"Company") in connection with the issuance by the Company of its
Floating Rate Series C Senior Notes due 1997 in an aggregate
principal amount of $5,000,000 (the "Series C Notes" or the
"Notes") and the purchases by you pursuant to the Note Purchase
Agreement made by Purchaser with the Company under date of
October 10, 1995 (the "Note Purchase Agreement") of Notes in the
respective aggregate principal amounts specified in Schedule A to
the Note Purchase Agreement. All capitalized terms used herein
without definition shall have the meanings ascribed thereto in the
Note Purchase Agreement.
We have examined such corporate records of the Company and its
Subsidiaries, agreements and other instruments, certificates of
officers and representatives of the Company and its Subsidiaries,
certificates of public officials, and such other documents, as we
have deemed necessary in connection with the opinions hereinafter
expressed. In such examination we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as
originals and the conformity with the authentic originals of all
documents submitted to us as copies. As to questions of fact
material to such opinions we have, when relevant facts were not
independently established, relied upon the representations set
forth in the Note Purchase Agreement and upon certifications by
officers or other representatives of the Company and its
Subsidiaries.
Based upon the foregoing and having regard for legal
considerations that we deem relevant, we render our opinion to you
pursuant to Section 4.4 of the Note Purchase Agreement as follows:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Kansas and has all
requisite power to execute and deliver the Note Purchase Agreement
and the Notes and to perform its obligations thereunder.
2. The Note Purchase Agreement has been duly authorized, executed
and delivered by the Company and constitute legal, valid and
binding agreements of the Company, enforceable against the Company
in accordance with their terms. The Company is duly qualified and
is authorized to do business in each jurisdiction where such
qualification and authorization is necessary, except where the
failure to be so qualified could not have a Material Adverse
Effect.
3. The Notes being purchased by you today have been duly
authorized, executed and delivered by the Company and constitute
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
4. No consent, approval or authorization of, or declaration,
registration or filing with, any Kansas, Texas or Federal
Governmental Authority is required to be obtained or made as a
condition to the validity of the execution and delivery by the
Company of the Note Purchase Agreement or the Notes.
5. It was not necessary in connection with the offering, sale and
delivery of the Notes, under the circumstances contemplated by the
Note Purchase Agreement, to register the Notes under the Securities
Act of 1933, or the Texas Securities Act or to qualify an
indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended or to register the Notes under the Securities
Exchange Act of 1934.
6. Each Subsidiary listed in Schedule 5.4 to the Note Purchase
Agreement is a corporation or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation or organization and is duly qualified as a
foreign corporation or other legal entity and is in good standing
in each jurisdiction in which such qualification is required by
law, except where the failure to be so qualified, individually or
in the aggregate, could not have a Material Adverse Effect.
7. Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, or the
Federal Power Act, as amended.
8. None of the transactions contemplated by the Note Purchase
Agreement (including without limitation the use of the proceeds
from the sale of the Notes) will violate or result in a violation
of Section 7 of the Exchange Act, or any regulations issued
pursuant thereto, including without limitation Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System (12
CFR, Part 207, Part 220 and Part 224, respectively).
9. There are no actions, suits or proceedings pending, or to our
knowledge threatened, against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority, except actions, suits or proceedings which
(a) individually do not in any manner draw into question the
validity of the Note Purchase Agreement or the Notes and (b) in the
aggregate could not reasonably be expected to have a Material
Adverse Effect.
10. Assuming the accuracy of the representations and warranties,
and compliance with the covenants made by or on behalf of the
Purchaser and the Beneficial Owner under the Note Purchase
Agreement and the Notes, (i) each of the Notes meets the
requirements of Section 871(h)(2)(B) or 881(c)(2)(B) of the
Internal Revenue Code of 1986, as amended (the "Code"), (ii) in the
case of Notes beneficially owned by a nonresident alien individual,
interest paid on the Notes will constitute "portfolio interest" as
such term is defined in Section 871(h)(2) of the Code, and (iii) in
the case of Notes beneficially owned by a foreign corporation,
interest paid on the Notes will constitute "portfolio interest" as
such term is defined in Section 881(c)(2) of the Code.
The opinions expressed above as to the enforceability of any
agreement or instrument in accordance with its terms are subject to
the exceptions that (a) such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights
generally and (ii) general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at law), (b) the enforceability of indemnity provisions
contained in the Note Purchase Agreement may be subject to
limitations based upon public policy considerations.
We express no opinion as to Section 22.3 of the Note Purchase
Agreement insofar as said Section relates to (a) the subject matter
jurisdiction of any New York State or federal court sitting in the
Bourough of Manhattan, the City of New York, to adjudicate any
controversy relating to the Note Purchase Agreement, the Notes or
any other document related thereto, or (b) the waiver of
inconvenient forum with respect to proceedings in such court.
Our opinions are limited in all respects to the substantive law
of the State of Texas and the Kansas General Corporation Code, and
the federal law of the United States, and we assume no
responsibility as to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction.
This opinion is given solely for your benefit, in connection with
the closing held today of the transactions contemplated by the Note
Purchase Agreement, and may not be relied upon by any other person
for any purpose without our prior written consent.
Very truly yours,
XXXXXXXX XXXXXXXX & XXXXXX P.C.
By:_______________________________
Xxxxxx X. Xxxx
SCHEDULE 5.3
Disclosure Documents
Form 10K -Annual Report for Fiscal year ended December 30, 1994.
Form 10Q -Quarterly Report for quarterly period ended March 31,
1995.
Form 8K - Current Report for May 5, 1995.
Proxy Statement - Notice of Annual Meeting of Shareholders to be
held June 8, 1995.
Proxy Supplement - Supplemental Information of Annual Meeting of
Shareholders to be held on June 8, 1995.
Form 10Q - Quarterly Report for quarterly period ended June 30,
1995.
SCHEDULE 5.4
Subsidiaries
--------------
BHC Acquisition Corporation
State of Incorporation: Texas
Shares/Equity Owned by Company: 100%
Directors:
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxx CEO, President, COO
Xxxxx Xxxxxxx Vice President, Secretary
Xxxxxxx X. Xxxxxxxx Vice President, Controller, Treasurer
Xxxx Xxxxxxx Assistant Treasurer
Xxxxxxx X. Xxxxxx Vice President
Xxxx Xxxxx Vice President
ShowBiz of Laurel, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 73%
Directors:
Xxxxxx X. Xxxx
Xxxx Xxxxx
Xxxxx X. Xxxx
Officers:
Xxxxxx X. Xxxx President, Treasurer
Xxxx Xxxxx Secretary, Vice President
Xxxxx Xxxxxx Xxxx Assistant Secretary
Xxxxx X. Cheese of Waldorf, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 100%
Directors:
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxxx
Officers:
Xxxxx Xxxxxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxxxx Schiranko Vice President
Xxxxx X. Cheese of Gaithersburg, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 80%
Directors:
Xxxx Xxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Officers:
Xxxx Xxxxx President
Xxxxx Xxxxxxxxx Secretary/Treasurer
Xxxxxx Xxxxxxx Vice President
Xxxxx X. Cheese of Xxxx Burnie, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 97%
Directors:
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Officers:
Xxxxx X. Xxxxxxx President
Xxxxx Xxxxxxxxx Vice President, Secretary,
Treasurer
Xxxx Xxx Xxxx Assistant Secretary
ShowBiz of Madison, Inc.
State of Incorporation: Wisconsin
Shares/Equity Owned by Company: 100%
Directors:
Xxxxxxx X. Xxxxx
Officers:
Xxxxxxx X. Xxxxx President
Xxxxx Xxxxxxx Vice President, Secretary
Xxxxxxx X. Xxxxxxxx Treasurer
Xxxxx X. Cheese of Diamond Point, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 97%
Directors:
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
Officers:
Xxxxx Xxxxxxx President
Xxxxxxx Xxxxxxxx Secretary, Treasure
Xxxxx X. Cheese of Westview, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 98%
Directors:
Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Officers:
Xxxxx Xxxxxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Hospitality Distribution Incorporated
State of Incorporation: Texas
Shares/Equity Owned by Company: 0%
Directors:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxxxxx
Officers:
Xxxxxxx X. Xxxxx President
Xxxxx Xxxxxxxxx Secretary
Xxxxxxx X. Xxxxxxxx Vice President, Treasurer
Xxxx Xxxxxxx, Jr. Assistant Treasurer
Xxxxx X. Cheese of Silver Springs, Inc.
State of Incorporation: Maryland
Shares/Equity Owned by Company: 0%
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxxx Xxxxxxxxx Vice President
ShowBiz of La Crosse, Inc.
State of Incorporation: Wisconsin
Shares/Equity Owned by Company: 100%
Directors:
Xxxxxxx X. Xxxxx
Officers:
Xxxxxxx X. Xxxxx President
Xxxxx Xxxxxxx Vice President, Secretary
Xxxxxxx X. Xxxxxxxx Treasurer
ShowBiz of Ashwaubenon, Inc.
State of Incorporation: Wisconsin
Shares/Equity Owned by Company: 100%
Directors:
Xxxxxxx X. Xxxxx
Officers:
Xxxxxxx X. Xxxxx President
Xxxxx Xxxxxxx Vice President, Secretary
Xxxxxxx X. Xxxxxxxx Treasurer
SB Hospitality Corporation
State of Incorporation: Texas
Shares/Equity Owned by Company: 49 %
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxx, Jr.
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Vice President
Xxxx Xxxxxxx, Jr. Treasurer
ShowBiz of Arkansas, Inc.
State of Incorporation: Arkansas
Shares/Equity Owned by Company: 50%
Directors:
Xxxxxxx X. Xxxxx
Officers:
Xxxxxxx X. Xxxxx President
Xxxxx Xxxxxxx Vice President, Secretary
Xxxxxxx X. Xxxxxxxx Treasurer
Xxxx Xxxxxxx Assistant Treasurer
Affiliates
-----------
International Association of ShowBiz Pizza Time Restaurants, Inc.
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxx Xxxxxxx
X.X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxxxx Xxxxxxxx Secretary, Treasurer
X.X. Xxxxxxx Vice President
B - SB Joint Venture Agreement
An Oklahoma joint venture including Xxxxxx X. Xxxxxxxxxx, Xxxxxxx Xxxx
Xxxxxxxxxx and ShowBiz Pizza Time, Inc.
Shares/Equity Owned by Company: 50%
MCBIZ/SHOWBIZ Joint Venture Agreement
A Kansas joint venture including MCBIZ Limited Partnership, a Kansas
limited partnership and ShowBiz Pizza Time, Inc.
Shares/Equity Owned by Company: 51%
Mid-South Joint Venture Agreement
A South Carolina joint venture including Mid-South Food Management,
Inc., a South Carolina corporation and ShowBiz Pizza Time, Inc.
Shares/Equity Owned by Company: 30%.
ShowBiz White Settlement Club, Inc.
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxx X. Xxxxxx Vice President
ShowBiz Richardson Club, Inc.
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxx X. Xxxxxx Vice President
ShowBiz Redbird Club, Inc.
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxx X. Xxxxxx Vice President
ShowBiz Montfort Club, Inc.
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxx X. Xxxxxx Vice President
0000 Xxxxx Xxxxxxx Xxxxxx Xxxx
Xxxxx of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Xxxx X. Xxxxxx Vice President
0000 Xxxxx Xxxxxxxx Xxxxxxx Club
State of Incorporation: Texas
Shares/Equity Owned by Company: Non-Profit
Directors:
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Officers:
Xxxxxxx X. Xxxxxx President
Xxxxx Xxxxxxx Secretary, Treasurer
Directors and Senior Officers of ShowBiz Pizza Time, Inc.
----------------------------------------------------------
OFFICERS
Xxxxxxx X. Xxxxx
Chairman of the Board and Chief Executive Officer
Xxxxxxx X. Xxxxxxxx
President
Xxxxxxx X. Xxxxxx
Executive Vice President -- Marketing and Entertainment
Xxxxx Xxxx
Executive Vice President -- Chief Financial Officer and Treasurer
Xxxx Xxxxx
Senior Vice President -- Construction and Entertainment
Attractions Xxxxxxxxx Xxxxxxx Senior Vice President -- Human Resources
Xxxxxxx X. Xxxxxxx
Senior Vice President -- Strategic Planning and Franchise Operations
BOARD OF DIRECTORS
Xxxxxxx X. Xxxxxx, Xx.
Partner -- Xxxxxx & XxXxxx, P.C.
Xxxxxxx X. Xxxxx
Chairman of the Board, and Chief Executive Officer
Xxxxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
The Hallwood Group Incorporated
Xxxxxx X. Xxxxx
Vice Chairman
The Hallwood Group Incorporated
Xxxxx X. Xxxx
President, Xxxx Enterprises, Inc.
Xxxxxxx X. Xxxxx
President, X. Xxxxx & Company, Inc.
J. Xxxxxx Xxxxxx
The Xxxxxx Company
Xxxxx X. Xxxxx
President and Chief Operating Officer
The Hallwood Group Incorporated
Xxxxxx Xxxxxxxx
Xxxxxx Partners Incorporated
SCHEDULE 5.5
Financial Statements
10K Annual Report for Fiscal year ended December 28, 1990.
10K Annual Report for Fiscal year ended December 27, 1991.
10K Annual Report for Fiscal year ended January 1, 1993.
10K Annual Report for Fiscal year ended December 31, 1993.
10K Annual Report for Fiscal year ended December 30, 1994.
10Q Quarterly Report for quarterly period ended March 31, 1995.
10Q Quarterly Report for quarterly period ended June 30, 1995.
SCHEDULE 5.8
Litigation
None.
SCHEDULE 5.1
Licenses, Etc.
CHICO CHEESES PIZZA, Brazilian Trademark, Registration No. 817043209 in
Class 28.10 ("games, toys and pastimes")
CHICO CHEESES PIZZA, Brazilian Trademark, Registration No. 817043217 in
Class 32.10 ("doughs, pastries in general")
SCHEDULE 5.15
Existing Indebtedness
Liens on personal property securing Standby Letters of Credit Nos.
50060624 and 50072426, as of March 31, 1995, issued by the Bank of
Boston in the respective face amounts of $58,600 and $1,500,000, paid
off from the proceeds under the Loan Agreement, dated June 27, 1995.
$29,200,000 owed to the Bank of Boston as of March 31, 1995, excluding
the Letters of Credit, paid off from the proceeds under the Note
Purchase Agreement, dated June 15, 1995.
On June 15, 1995, the Company issued Series A Senior Notes and Series B
Senior Notes, totaling $28,000,000.
On June 27, 1995, the Company entered into a Loan Agreement with Bank
One, Texas, N.A., with a revolving credit commitment in an amount equal
to $5,000,000.
Other existing indebtedness on the date of closing which would be
permitted under Section 8.1 (a) of the Loan Agreement, consisting of
capital lease obligations totaling $1,193,915 and other indebtedness
that does not exceed in the aggregate $500,000.
The Company has guaranteed certain obligations related to restaurant
building and equipment leases. The underlying assets are collateral for
the leases and the makers or assignees of all of the obligations are
required to perform thereunder before the Company is required to fulfill
its guarantee. In the event of default by the maker or assignee, the
Company, in almost all cases, may make payment under the guarantees in
accordance with the original payment schedule and has the right to
locate potential buyers or subtenants for the assets. As of March 31,
1995, such guarantees aggregated approximately $989,000.
The Company has a limited recourse guaranty of Monterey Acquisition
Corp.'s obligation to repay a $4,700,000 term loan to Greyhound
Financial Corporation. This guaranty is limited in recourse to the
Company's pledge of its interest in 143,250 shares of common stock of
Monterey Acquisition Corp. valued at $437,500 in the aggregate.
