FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended November 14, 1996
[] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________to_______________
Commission file number 1-12604
THE MARCUS CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1139844
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 EAST WISCONSIN AVENUE - MILWAUKEE, WISCONSIN 53202
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (414) 272-6020
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934, during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to filing requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
COMMON STOCK OUTSTANDING AT DECEMBER 16, 1996 - 10,577,074
CLASS B COMMON STOCK OUTSTANDING AT DECEMBER 16, 1996 - 8,856,405
<PAGE>
THE MARCUS CORPORATION
INDEX
Page
No.
PART I - FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Balance Sheets
(November 14, 1996 and May 30, 1996) . . . . . 3
Statements of Earnings
(Twelve and twenty-four weeks ended November
14, 1996 and November 9, 1995) . . . . . . . . 5
Statements of Cash Flows
(Twenty-four weeks ended November 14, 1996 and
November 9, 1995) . . . . . . . . . . . . . . 6
Condensed Notes to Financial Statements . . . 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations . . . . . . . . . . . . . . . . 8
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security
Holders . . . . . . . . . . . . . . . . . . . 12
Item 6. Exhibits and Reports on Form 8-K . . . . . . . 13
Signatures . . . . . . . . . . . . . . . . . . . . . . . 14
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
THE MARCUS CORPORATION
Consolidated Balance Sheets
(in thousands)
(Unaudited) (Audited)
November 14, May 30,
ASSETS 1996 1996
Current Assets:
Cash and cash equivalents $ 40,167 $ 15,466
Accounts and notes receivable 8,438 8,780
Receivables from joint ventures 454 4,890
Other current assets 3,555 2,463
------- -------
Total current assets 52,614 31,599
------- -------
Property and equipment:
Land and improvements 66,066 60,177
Buildings and improvements 370,181 329,458
Leasehold improvements 5,198 5,688
Furniture, fixtures and equipment 148,176 137,305
Construction in progress 21,837 22,336
------- -------
Total property and equipment 611,458 554,964
Less accumulated depreciation and
amortization 153,648 143,401
------- -------
Net property and equipment 457,810 411,563
------- -------
Other assets:
Investments in joint ventures 1,484 1,295
Other 13,158 10,858
------- -------
Total other assets 14,642 12,153
------- -------
TOTAL ASSETS $525,066 $455,315
======= =======
See accompanying notes to consolidated financial statements
<PAGE>
THE MARCUS CORPORATION
Consolidated Balance Sheets
(unaudited) (audited)
November 14, May 30,
LIABILITIES AND SHAREHOLDERS' EQUITY 1996 1996
Current liabilities:
Notes payable $ 5,173 $ 5,555
Accounts payable 14,583 15,646
Income taxes 4,103 1,393
Taxes other than income taxes 10,202 8,323
Accrued compensation 2,343 1,380
Other accrued liabilities 8,349 9,352
Current maturities on long-term debt 11,480 9,069
-------- --------
Total current liabilities 56,233 50,718
-------- --------
Long-term debt 170,546 127,135
Deferred income taxes 20,186 20,027
Deferred compensation and other 9,835 6,187
Shareholders' equity:
Preferred Stock, $1 par; authorized
1,000,000 shares; none issued
Common Stock, $1 par; authorized
30,000,000 shares; issued 11,530,262
shares at November 14, 1996,
11,529,962 shares at May 30, 1996 11,530 11,530
Class B Common Stock, $1 par;
authorized 20,000,000 shares; issued
and outstanding 8,856,305 shares at
November 14, 1996, 8,856,605 shares
at May 30, 1996 8,856 8,857
Capital in excess of par 38,894 38,832
Retained earnings 212,639 195,643
------- -------
271,919 254,862
Less cost of Common Stock in treasury
(712,921 shares at November 14, 1996
and 718,352 shares at May 30, 1996) 3,653 3,614
-------- --------
Total shareholders' equity 268,266 251,248
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS'
EQUITY $525,066 $455,315
======== ========
See accompanying notes to consolidated financial statements
<PAGE>
<TABLE>
THE MARCUS CORPORATION
Consolidated Statements of Earnings (Unaudited)
<CAPTION>
(in thousands, except per share and share data)
November 14, 1996 November 9, 1995
12 Weeks 24 Weeks 12 Weeks 24 Weeks
<S> <C> <C> <C> <C>
Revenues:
Rooms and telephone $ 36,597 $ 77,150 $ 33,614 $ 70,626
Food and beverage 11,252 22,547 10,657 22,523
Theatre operations 11,878 32,364 10,033 28,890
Other income 5,101 10,591 3,657 9,490
------- ------- ------- -------
Total revenues 64,828 142,652 57,961 131,529
------- ------- ------- -------
Costs and expenses:
Rooms and telephone 13,081 26,381 11,780 23,794
Food and beverage 7,902 15,824 7,614 15,920
Theatre operations 7,727 20,152 6,077 17,324
Advertising and marketing 5,212 9,106 3,550 6,874
Administrative 5,520 12,128 5,705 13,064
Depreciation and amortization 6,528 12,868 5,599 11,474
Rent 500 1,306 509 1,528
Property taxes 2,494 5,090 2,097 4,300
Other operating expenses 2,377 4,892 3,265 6,059
------- ------- ------- -------
Total costs and expenses 51,341 107,747 46,196 100,337
------- ------- ------- -------
Operating income 13,487 34,905 11,765 31,192
Other income (expense):
Investment income 294 437 956 1,320
Interest expense (2,489) (4,668) (2,124) (4,235)
Gain on disposition of property
and equipment 15 19 691 25,298
------- -------- -------- --------
(2,180) (4,212) (477) 22,383
------- -------- -------- --------
Earnings before income taxes 11,307 30,693 11,288 53,575
Income taxes 4,525 12,283 4,697 21,674
------- -------- -------- --------
Net earnings $ 6,782 $ 18,410 $ 6,591 $ 31,901
======= ======== ======== ========
Net earnings per share:*
Earnings excluding gain on
restaurant sale $0.34 $0.93 $0.33 $0.86
After-tax gain on restaurant
sale -- -- -- $0.75
---- ---- ---- ----
Net earnings per share $0.34 $0.93 $0.33 $1.61
==== ==== ==== ====
Weighted Average Shares
Outstanding* 19,843,000 19,762,500
* All per share and weighted average shares outstanding data has been
adjusted to reflect the 50% stock dividend distributed on November 14,
1995.
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
THE MARCUS CORPORATION
Consolidated Statements of Cash Flows (Unaudited)
(in thousands)
24 Weeks Ended
November 14, November 9,
1996 1995
OPERATING ACTIVITIES:
Net earnings $ 18,410 $ 31,901
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Earnings on investments in joint
ventures, net of distributions (189) (213)
Gain on disposition of property
and equipment (19) (25,298)
Depreciation and amortization 12,868 11,474
Deferred income taxes 159 793
Deferred compensation and other 3,648 473
Changes in assets and liabilities:
Accounts and notes receivable 342 (3,208)
Other current assets (1,092) 1,205
Accounts payable (1,063) (9,843)
Income taxes 2,710 6,273
Taxes other than income taxes 1,879 1,351
Accrued compensation 963 1,256
Other accrued liabilities (1,003) (47)
------- --------
Total adjustments 19,203 (15,784)
------- --------
Net cash provided by operating
activities 37,613 16,117
INVESTING ACTIVITIES:
Capital expenditures (60,155) (36,709)
Net proceeds from disposals of property,
equipment and other assets 1,059 49,530
Purchase of interest in joint ventures,
net of cash acquired -- (329)
(Increase) decrease in other assets (2,300) 1,925
Cash received from joint ventures 4,436 275
------- -------
Net cash provided by (used in) investing
activities (56,960) 14,692
------- -------
FINANCING ACTIVITIES:
Debt transactions:
Net proceeds from issuance of notes
payable and long-term debt 97,875 --
Principal payments on notes payable
and long-term debt (52,435) (21,136)
Equity transactions:
Treasury stock transactions, except
for stock options (117) (104)
Exercise of stock options 140 247
Dividends paid (1,415) (5,010)
------- -------
Net cash provided by (used in) financing
activities 44,048 (26,003)
------- -------
Net increase (decrease) in cash and cash
equivalents 24,701 4,806
Cash and cash equivalents at beginning
of year 15,466 8,798
------ -------
Cash and cash equivalents at end of
period $40,167 $13,604
====== ======
See accompanying notes to consolidated financial statements
<PAGE>
THE MARCUS CORPORATION
CONDENSED NOTES TO FINANCIAL STATEMENTS FOR THE
TWELVE AND TWENTY-FOUR WEEKS ENDED
NOVEMBER 14, 1996
(Unaudited)
A. Refer to the Company's audited financial statements (including
footnotes) for the year ended May 30, 1996, contained in the
Company's Form 10-K Annual Report for such year, for a description of
the Company's accounting policies.
B. The consolidated financial statements for the twelve and twenty-four
weeks ended November 14, 1996 and November 9, 1995, have been
prepared by the Company without audit. In the opinion of management,
all adjustments consisting only of normal recurring accruals
necessary to present fairly the unaudited interim financial
information at November 14, 1996, and for all periods presented have
been made.
C. Pursuant to an asset purchase agreement dated April 12, 1995, the
Company completed the sale of its 18 existing Applebee's Neighborhood
Grill & Bar restaurants (Applebee's), two Applebee's under
construction, five Applebee's under development and its development
rights for Applebee's to Apple South, Inc. (the Purchaser). On June
5, 1995, the Company entered into a management agreement with the
Purchaser, whereby the Purchaser commenced to immediately manage,
operate and assume all of the Company's existing operating and
development responsibilities related to the Company's Applebee's
restaurant operations. The Purchaser received all profits of the
restaurants between June 5, 1995 and June 30, 1995, as reimbursement
for its management service. On June 30, 1995, proceeds from the sale
of approximately $48.3 million were received by the Company in cash.
D. The Company's Board of Directors declared a three-for-two stock
split, effected in the form of a 50% stock dividend, distributed on
November 14, 1995, to all holders of Common Stock and Class B Common
Stock. All per share and weighted average shares outstanding data
prior to November 14, 1995, have been adjusted to reflect this
dividend.
E. Certain items in the accompanying fiscal 1996 financial statements
have been reclassified to conform to the fiscal 1997 presentation.
<PAGE>
Item 2. Management's Discussion and Analysis of Results of Operations
and Financial Condition
Special Note Regarding Forward-Looking Statements
Certain matters discussed in this Management's Discussion and
Analysis of Results of Operations and Financial Condition are "forward-
looking statements" intended to qualify for the safe harbors from
liability established by the Private Securities Litigation Reform Act of
1995. These forward-looking statements can generally be identified as
such because the context of the statement will include words such as the
Company "believes," "anticipates," "expects" or words of similar import.
Similarly, statements that describe the Company's future plans, objectives
or goals are also forward-looking statements. Such forward looking
statements are subject to certain risks, assumptions and uncertainties
which are described in close proximity to such statements and which could
cause actual results to differ materially from those currently
anticipated. Shareholders, potential investors and other readers are
urged to consider these risks, assumptions and uncertainties carefully in
evaluating the forward-looking statements and are cautioned not to place
undue reliance on such forward-looking statements. The forward-looking
statements made herein are only made as of the date of this Form 10-Q and
the Company undertakes no obligation to publicly update such forward-
looking statements to reflect subsequent events or circumstances.
RESULTS OF OPERATIONS
General
The Company reports its results of operations on a 52-or 53-week
fiscal year which ends on the last Thursday in May. Each fiscal year is
divided into three 12-week quarters and a final quarter consisting of 16
or 17 weeks. The final quarter of fiscal 1997 will consist of 17 weeks
for the Company's motel and hotels/resorts divisions, while the Company
and its other remaining divisions will report a 16-week fourth quarter.
Fiscal 1996 was a 53-week fiscal year for the Company and its theatre
division, while the Company's remaining divisions reported a 52-week year
in fiscal 1996.
Revenues for the second quarter of fiscal 1997 ended November
14, 1996, totaled $64.8 million, an increase of $6.8 million, or 11.8%,
from revenues of $58.0 million for the second quarter of fiscal 1996. For
the first half of fiscal 1997, revenues were $142.6 million, an increase
of $11.1 million, or 8.5%, from revenues of $131.5 million in the first
half of fiscal 1996. All four operating segments contributed to the
increase in revenues for the fiscal 1997 second quarter.
Net earnings for the second quarter of fiscal 1997 were $6.8
million, or $.34 per share, up 2.9% and 3.0%, respectively, from net
earnings of $6.6 million, or $.33 per share, for the same quarter in the
prior year. For the first half of fiscal 1997, net earnings were $18.4
million, or $.93 per share. This represented a 7.7% and 8.1% increase,
respectively, over comparable earnings of $17.1 million, or $.86 per
share, for the first half of fiscal 1996. Including the after-tax gain of
$14.8 million, or $.75 per share, resulting from the Company's sale of its
Applebee's restaurants and related rights in June 1995, net earnings for
fiscal 1996's first half were $31.9 million, or $1.61 per share.
Operating income (earnings before other income/expense and
income taxes) totaled $13.5 million in the second quarter of fiscal 1997,
an increase of $1.7 million, or 14.6%, compared to the prior year same
period. For the first half of fiscal 1997, operating income was $34.9
million, an increase of $3.7 million, or 11.9%, over operating income of
$31.2 million for the first half of fiscal 1996. Comparisons of net
earnings between fiscal 1997 and 1996 second quarters were adversely
affected by the absence in fiscal 1997 of $700,000 of gains on disposition
of property and equipment otherwise recognized in fiscal 1996. In
addition, the Company realized reduced investment income in the fiscal
1997 second quarter compared to the fiscal 1996 second quarter when the
Company was still investing the proceeds from the sale of its Applebee's
restaurants and increased interest expense in fiscal 1997 associated with
the Company's higher long-term debt levels compared to the same period
last year, pursuant to the Company's strategy to "lock-in" favorable long-
term interest rates.
Motels
Total revenues for the second quarter of fiscal 1997 for the
motel division were $30.4 million, an increase of $2.6 million, or 9.3%,
compared to $27.8 million in the same period in fiscal 1996. Total
revenues for the first half of fiscal 1997 for the motel division were
$64.4 million, an increase of $6.0 million, or 10.3%, compared to $58.4
million in the first half of fiscal 1996. The motel division's operating
income for the fiscal 1997 second quarter totaled $8.8 million, a decrease
of $100,000, or 1.3%, from the $8.9 million earned by the division in the
same period of fiscal 1996. The motel division's operating income for the
first half of fiscal 1997 totaled $21.8 million, an increase of $1.1
million, or 5.5%, over the $20.7 million earned by the division in the
same period of fiscal 1996.
Compared to the end of the second quarter of fiscal 1996, there
were 11 new Company-owned or operated and five new franchised Budgetel
Inns in operation at the end of the fiscal 1997 second quarter. The
Company's newly opened motels contributed additional revenues of $1.9
million to the division's fiscal 1997 second quarter revenues. The
Company's comparative occupancy rates were slightly lower early in the
second quarter of fiscal 1997, but strengthened later in the quarter. The
Company believes that a temporary decline in demand, combined with
increasing industry segment room supply, contributed to the decline.
Increased average daily room rates at the Company's continuing motels
during the second quarter of fiscal 1997 compared to the same period last
year partially offset the lower occupancy rates. Start-up expenses
associated with new motels and increased advertising costs contributed to
the slight decline in operating income despite increased revenues.
At the end of the fiscal 1997 second quarter, the Company owned
or operated 98 Budgetel Inns and franchised an additional 35 Inns,
bringing the total number of Budgetel Inns in operation to 133. In
addition, there are currently 16 Company-owned or franchised Budgetel Inns
under construction, all of which are scheduled to open before the end of
fiscal 1997 or shortly thereafter. The Company also owns and operates
three Woodfield Suites all-suite motels and plans to open a fourth
location in Cincinnati, Ohio during the third quarter of fiscal 1997 and a
fifth location in Madison, Wisconsin in early fiscal 1998. During the
second quarter of fiscal 1997, the Company announced its goal of
increasing the number of Woodfield Suites in operation to 40 to 50
properties within the next five years. The Company expects the increase
to be achieved through new company-owned units, acquisitions and the
introduction of a franchise program.
Theatres
The theatre division's fiscal 1997 second quarter revenues were
$11.9 million, an increase of $1.8 million, or 18.5%, over revenues of
$10.1 million in the same period in fiscal 1996. Operating income for the
second quarter in fiscal 1997 totaled $882,000, a decrease of $900,000, or
50.8%, from operating income of $1.8 million in the same period last year.
The theatre division's fiscal 1997 first half revenues were $32.5 million,
an increase of $3.5 million, or 12.1%, over revenues of $29.0 million in
the first half of fiscal 1996. Operating income for the first half of
fiscal 1997 was $5.8 million, a decrease of $1.2 million, or 16.6%, from
$7.0 million of operating income in the first half of fiscal 1996.
Consistent with the seasonality of the motion picture exhibition industry,
the second quarter of the Company's fiscal year is typically the slowest
period for its theatre division.
Theatre division operating income declined due to higher pre-
opening and start-up costs, especially for advertising and training,
coupled with weak film product in late August, September and October. The
higher start-up costs were the result of the first quarter opening of two
new theatre complexes, the acquisition of three theatres and the
introduction of the division's new family entertainment center. The
Company added 47 new screens in the first quarter of fiscal 1997 and none
in the second quarter, ending the second quarter with a total of 266
screens compared to 204 at the end of the same period last year. The
Company opened it's largest complex, a 20-screen ultraplex in Addison,
Illinois, on the first day of the third quarter of fiscal 1997. In
addition, the Company currently has 13 additional screens under
construction at existing theatres.
Total box office receipts for the fiscal 1997 first half were
$22.0 million, an increase of $1.7 million, or 8.2%, over $20.3 million in
the same period last year. The increase in box office receipts for the
first half of fiscal 1997 compared to the same period in the prior year
was entirely due to the additional new screens, together with a 4.5%
increase in first-run theatre average ticket prices and a 5.8% increase in
concession revenues per person. Without the additional screens, theatre
attendance would have decreased for the first half and second quarter
largely as a result of the less attractive film offerings during the
period. The impact of the 1996 Summer Olympics significantly affected
attendance late in the first quarter and the effect carried over into the
second quarter as well. Motion picture film distributors anticipated
lower theatre attendance during the Olympics and featured their best films
during the late spring and early summer to avoid competing with the
Olympics. This strategy meant that less attractive films were distributed
in late summer and early fall, with the result being a lack of quality
carryovers into the Company's fiscal second quarter, which began in mid-
August. Theatre attendance is largely dependent upon the audience appeal
of available films, a factor over which the Company has limited control.
Hotels and Resorts
Total revenues from the hotels and resorts division during the
second quarter of fiscal 1997 increased by $1.6 million, or 11.4%, to
$16.0 million, compared to $14.4 million in the previous year's comparable
period. Operating income increased by $1.7 million, or 93.5%, to $3.5
million in the fiscal 1997 second quarter, compared to $1.8 million in the
second quarter of fiscal 1996. Total revenues from the hotels and resorts
division during the first half of fiscal 1997 totaled $32.5 million, an
increase of $1.7 million, or 5.6%, over total first half revenues of $30.7
million in fiscal 1996. Operating income increased by $1.9 million in the
first half of fiscal 1997, or 36.6%, to $7.2 million, compared to $5.3
million in the prior year's first half.
Higher average room rates at the Company's hotels contributed to
the increases in the fiscal 1997 periods compared to the prior year's
periods. The division's fiscal 1997 second quarter and first half results
also benefitted from reduced charges for pre-opening costs for the
Milwaukee Hilton (formerly the Marc Plaza) and increased management fees
from properties managed but not owned by the hotels and resorts division.
Restaurants
Restaurant division revenues totaled $6.3 million for the second
quarter of fiscal 1997, an increase of $700,000, or 12.6%, over fiscal
1996 second quarter revenues of $5.6 million. The division's operating
income for the fiscal 1997 second quarter totaled $673,000, an increase of
$542,000, or 413.7%, over operating income of $131,000 in the second
quarter of fiscal 1996. Restaurant division revenues totaled $13.1
million for the first half of fiscal 1997, an increase of $100,000, or
0.9%, over first half fiscal 1996 revenues of $13.0 million. Excluding
$1.1 million of revenues from subsequently sold or closed restaurants from
fiscal 1996 revenues, first half fiscal 1997 revenues increased 9.9% over
the prior year. The division's operating income for the first half of
fiscal 1997 totaled $1.3 million, an increase of $940,000, or 241.6%, over
fiscal 1996 first half operating income of $389,000.
The increases in revenues and operating income for both the
second quarter and first half of fiscal 1997, compared to the same prior
periods, were primarily the result of recent successful KFC product
introductions and increased sales from KFC's home delivery program,
combined with reduced administrative costs related to the disposition of
Applebee's and other restaurant properties last year. Same store KFC
revenues for the second quarter of fiscal 1997 compared to the prior
year's second quarter were up 8.3%, with guest counts at same store KFC's
up 3.0% and average guest check amounts up 5.2%. The Company has plans to
convert and open its first 2-in-1 KFC/Taco Bell restaurant in the fourth
quarter of fiscal 1997.
FINANCIAL CONDITION
The Company's lodging, movie theatre and restaurant businesses
each generate significant and consistent daily amounts of cash because
each segment's revenue is derived predominantly from consumer cash
purchases. The Company believes that these consistent and predictable
cash sources, together with the availability to the Company of $80 million
of unused credit lines at the end of the second quarter, should be
adequate to support the ongoing operational liquidity needs of the
Company's businesses.
Net cash provided by operating activities increased by $21.5
million during the first half of fiscal 1997 to $37.6 million, compared to
$16.1 million in the prior year's first half. The increase over the same
period last year was primarily the result of approximately $10 million of
income taxes incurred on the gain on the sale of restaurants in fiscal
1996, combined with increased net earnings before the restaurant gain.
Timing differences in receipts of accounts and notes receivable and
payment of accounts payable contributed to the increase in net cash
provided by operating activities as well.
Net cash used in investing activities in the fiscal 1997 first
half totaled $60.0 million, compared to the positive cash flow of $14.7
million in the fiscal 1996 first half which resulted from receiving $48.3
million in net cash proceeds from the June 1995 sale of its Applebee's
restaurants and related rights. Capital expenditures to support the
Company's continuing expansion program totaled $60.1 million in the first
half of fiscal 1997 compared to $36.7 million in the prior year's first
half.
Cash provided by financing activities in the fiscal 1997 first
half totaled $44.0 million, compared to cash used in financing activities
of $26.0 million in the first half of fiscal 1996. During the fiscal 1997
first half, the Company received $97.9 million of net proceeds from the
issuance of notes payable and long-term debt, compared to none in the
first half of fiscal 1996. The lack of proceeds in fiscal 1996 was due to
the Company's use of cash proceeds from its Applebee's sale to fund
expansion during that time period. Included in the fiscal 1997 proceeds
was $85 million in principal amount of senior unsecured long-term notes
issued in a private placement to six institutional lenders. The Company
has the ability to issue up to $115 million of additional senior notes
under the private placement program over the next thirty months. The
Company used a portion of the proceeds from the senior notes to pay off
existing debt, resulting in total principal payments on notes payable and
long-term debt of $52.4 million in the first half of fiscal 1997, compared
to only $21.1 million in the same period last year. The Company expects
to use the remaining proceeds to help fund the Company's ongoing expansion
plans.
In addition to the changes in debt transactions noted above, net
cash provided by financing activities also increased due to dividend
payments of only $1.4 million in the first half of fiscal 1997 compared to
$5.0 million in the first half of fiscal 1996. The reduction in dividend
payments for the period was the result of a one-time timing difference
between the Company's quarterly dividend payments in fiscal 1997 compared
to an annual dividend payment made in fiscal 1996. Total fiscal 1997
dividend payments are expected to exceed fiscal 1996 dividend payments.
The actual timing and extent of the implementation of the
Company's current expansion plans will depend in large part on continuing
favorable industry and general economic conditions, the competitive
environment, evolving customer needs and trends and the availability of
attractive opportunities. It is likely that the Company's current
expansion goals will continue to evolve and change in response to these
and other factors.
<PAGE>
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Company's 1996 annual meeting of shareholders was held on
Thursday, September 26, 1996 ("Annual Meeting"). At the Annual Meeting,
the following matters were voted on in person or by proxy, and approved by
the Company's shareholders:
1. The shareholders voted to elect Ben Marcus, Stephen H. Marcus,
Diane Marcus Gershowitz, George R. Slater, Lee Sherman Dreyfus,
John L. Murray, Daniel F. McKeithan, Jr., Allan H. Selig and
Timothy E. Hoeksema to the Company's Board of Directors for one-
year terms to expire at the Company's 1997 annual meeting of
shareholders and until their successors are duly qualified and
elected.
As of the August 9, 1996 record date for the Annual Meeting ("Record
Date"), 10,816,145 shares of Common Stock and 8,856,405 shares of Class B
Common Stock were outstanding and eligible to vote, with the Common Stock
entitled to one vote per share and the Class B Common Stock entitled to
ten votes per share. Following are the final votes on the matters
presented for shareholder approval at the Annual Meeting:
Election of Directors
For Withheld
Percentage Percentage
Name Votes (1) Votes (1)
Lee Sherman Dreyfus 89,858,718 99.98% 17,632 0.02%
Diane Marcus Gershowitz 89,862,807 99.98% 13,543 0.02%
Timothy E. Hoeksema 89,861,864 99.98% 14,486 0.02%
Stephen H. Marcus 89,862,888 99.99% 13,462 0.01%
Daniel F. McKeithan,
Jr. 89,862,914 99.99% 13,436 0.01%
John L. Murray 89,858,830 99.98% 17,520 0.02%
Bruce J. Olson 89,863,230 99.99% 13,120 0.01%
Allan H. Selig 89,855,182 99.98% 21,168 0.02%
George R. Slater 89,858,830 99.98% 17,520 0.02%
____________
(1) Based on a total of 89,876,350 votes represented by shares of Common
Stock and Class B Common Stock actually voted in person or by proxy
at the Annual Meeting.
No other matters were brought before the Annual Meeting for a shareholder
vote.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
Exhibit 4.1. The Marcus Corporation Note Purchase
Agreement, dated October 25, 1996.
Exhibit 27. Financial Data Schedule
b. Reports on Form 8-K
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
THE MARCUS CORPORATION
(Registrant)
DATE: December 23, 1996 By: \s\ Stephen H. Marcus
Stephen H. Marcus,
Chairman of the Board, President and
Chief Executive Officer
DATE: December 23, 1996 By: \s\ Douglas A. Neis
Douglas A. Neis
Chief Financial Officer and Treasurer
<PAGE>
THE MARCUS CORPORATION
FORM 10-Q
FOR THE
24 - WEEKS ENDED NOVEMBER 14, 1996
EXHIBIT INDEX
Exhibit Description
4.1 The Marcus Corporation Note Purchase Agreement, dated
October 25, 1996.
27 Financial Data Schedule
The Marcus Corporation
$60,000,000
7.41% Series A Senior Notes, Tranche A, due October 15, 2008
and
$25,000,000
7.51% Series A Senior Notes, Tranche B, due October 15, 2011
______________
Note Purchase Agreement
_____________
Dated as of October 25, 1996
<PAGE>
Table of Contents
(Not a part of the Agreement)
Section Heading Page
Section 1. Authorization of Notes . . . . . . . . . . . . . . . . 6
Section 2. Sale and Purchase of Notes . . . . . . . . . . . . . . 6
Section 2.1. Series A Notes . . . . . . . . . . . . . . . . . . . 6
Section 2.2. Additional Series of Notes . . . . . . . . . . . . . 7
Section 3. Closing . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Conditions to Closing . . . . . . . . . . . . . . . . . 8
Section 4.1. Representations and Warranties . . . . . . . . . . . 8
Section 4.2. Performance; No Default. . . . . . . . . . . . . . . 8
Section 4.3. Compliance Certificates . . . . . . . . . . . . . . 9
Section 4.4. Opinions of Counsel . . . . . . . . . . . . . . . . 9
Section 4.5. Purchase Permitted By Applicable Law, etc . . . . . 9
Section 4.6. Sale of Other Notes . . . . . . . . . . . . . . . . 9
Section 4.7. Payment of Special Counsel Fees. . . . . . . . . . . 9
Section 4.8. Private Placement Number . . . . . . . . . . . . . . 9
Section 4.9. Changes in Corporate Structure . . . . . . . . . . 10
Section 4.10. Proceedings and Documents . . . . . . . . . . . . 10
Section 4.11. Conditions to Issuance of Additional Notes . . . . 10
Section 5. Representations and Warranties of the Company . . . . 10
Section 5.1. Organization; Power and Authority . . . . . . . . 10
Section 5.2. Authorization, etc . . . . . . . . . . . . . . . . 11
Section 5.3. Disclosure . . . . . . . . . . . . . . . . . . . . 11
Section 5.4. Organization and Ownership of Shares of Restricted
Subsidiaries; Affiliates and Investments . . . . . 11
Section 5.5. Financial Statements . . . . . . . . . . . . . . . 12
Section 5.6. Compliance with Laws, Other Instruments, etc . . . 12
Section 5.7. Governmental Authorizations, etc . . . . . . . . . 12
Section 5.8. Litigation; Observance of Agreements, Statutes and
Orders . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.9. Taxes . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.10. Title to Property; Leases . . . . . . . . . . . . 13
Section 5.11. Licenses, Permits, etc . . . . . . . . . . . . . . 13
Section 5.12. Compliance with ERISA . . . . . . . . . . . . . . 14
Section 5.13. Private Offering by the Company . . . . . . . . . 15
Section 5.14. Use of Proceeds; Margin Regulations . . . . . . . 15
Section 5.15. Existing Debt; Future Liens . . . . . . . . . . . 15
Section 5.16. Foreign Assets Control Regulations, etc . . . . . 15
Section 5.17. Status under Certain Statutes . . . . . . . . . . 16
Section 5.18. Environmental Matters . . . . . . . . . . . . . . 16
Section 6. Representations of the Purchaser . . . . . . . . . . 16
Section 6.1. Purchase for Investment . . . . . . . . . . . . . 16
Section 6.2. Source of Funds . . . . . . . . . . . . . . . . . 17
Section 7. Information as to Company . . . . . . . . . . . . . . 18
Section 7.1. Financial and Business Information . . . . . . . . 18
Section 7.2. Officer's Certificate . . . . . . . . . . . . . . 21
Section 7.3. Inspection . . . . . . . . . . . . . . . . . . . . 21
Section 8. Prepayment of the Series A Notes . . . . . . . . . . 22
Section 8.1. Required Prepayments . . . . . . . . . . . . . . . 22
Section 8.2. Optional Prepayments with Make-Whole Amount . . . 22
Section 8.3. Allocation of Partial Prepayments . . . . . . . . 23
Section 8.4. Maturity; Surrender, etc . . . . . . . . . . . . . 23
Section 8.5. Purchase of Notes . . . . . . . . . . . . . . . . 23
Section 8.6. Make-Whole Amount for Series A Notes . . . . . . . 23
Section 9. Affirmative Covenants . . . . . . . . . . . . . . . . 25
Section 9.1. Compliance with Law . . . . . . . . . . . . . . . 25
Section 9.2. Insurance . . . . . . . . . . . . . . . . . . . . 25
Section 9.3. Maintenance of Properties . . . . . . . . . . . . 25
Section 9.4. Payment of Taxes and Claims . . . . . . . . . . . 26
Section 9.5. Corporate Existence, etc . . . . . . . . . . . . . 26\
Section 10. Negative Covenants . . . . . . . . . . . . . . . . . 26
Section 10.1. Transactions with Affiliates . . . . . . . . . . . 26
Section 10.2. Consolidated Operating Cash Flow . . . . . . . . . 26
Section 10.3. Limitations on Debt . . . . . . . . . . . . . . . 26
Section 10.4. Limitations on Priority Debt . . . . . . . . . . . 27
Section 10.5. Limitation on Liens . . . . . . . . . . . . . . . 27
Section 10.6. Sales of Assets . . . . . . . . . . . . . . . . . 29
Section 10.7. Merger, Consolidation and Sale of Stock . . . . . 30
Section 10.8. Designation of Restricted and Unrestricted Subsidiaries30
Section 10.9. Nature of Business . . . . . . . . . . . . . . . . 31
Section 11. Events of Default . . . . . . . . . . . . . . . . . . 31
Section 12. Remedies on Default, etc . . . . . . . . . . . . . . 33
Section 12.1. Acceleration . . . . . . . . . . . . . . . . . . . 33
Section 12.2. Other Remedies . . . . . . . . . . . . . . . . . . 34
Section 12.3. Rescission . . . . . . . . . . . . . . . . . . . . 34
Section 12.4. No Waivers or Election of Remedies, Expenses, etc 34
Section 13. Registration; Exchange; Substitution of Notes . . . . 35
Section 13.1. Registration of Notes . . . . . . . . . . . . . . 35
Section 13.2. Transfer and Exchange of Notes . . . . . . . . . . 35
Section 13.3. Replacement of Notes . . . . . . . . . . . . . . . 35
Section 14. Payments on Notes . . . . . . . . . . . . . . . . . . 36
Section 14.1. Place of Payment . . . . . . . . . . . . . . . . . 36
Section 14.2. Home Office Payment . . . . . . . . . . . . . . . 36
Section 15. Expenses, Etc . . . . . . . . . . . . . . . . . . . . 36
Section 15.1. Transaction Expenses . . . . . . . . . . . . . . . 36
Section 15.2. Survival . . . . . . . . . . . . . . . . . . . . . 37
Section 16. Survival of Representations and Warranties;
Entire Agreement . . . . . . . . . . . . . . . . . . 37
Section 17. Amendment and Waiver . . . . . . . . . . . . . . . . 37
Section 17.1. (a) Requirements . . . . . . . . . . . . . . . . 37
Section 17.2. Solicitation of Holders of Notes . . . . . . . . . 38
Section 17.3. Binding Effect, etc . . . . . . . . . . . . . . . 38
Section 17.4. Notes Held by Company, etc . . . . . . . . . . . . 39
Section 18. Notices . . . . . . . . . . . . . . . . . . . . . . . 39
Section 19. Reproduction of Documents . . . . . . . . . . . . . . 39
Section 20. Confidential Information . . . . . . . . . . . . . . 40
Section 21. Substitution of Purchaser . . . . . . . . . . . . . . 41
Section 22. Miscellaneous . . . . . . . . . . . . . . . . . . . . 41
Section 22.1. Successors and Assigns . . . . . . . . . . . . . . 41
Section 22.2. Payments Due on Non-Business Days . . . . . . . . 41
Section 22.3. Severability . . . . . . . . . . . . . . . . . . . 41
Section 22.4. Construction . . . . . . . . . . . . . . . . . . . 41
Section 22.5. Counterparts . . . . . . . . . . . . . . . . . . . 42
Section 22.6. Governing Law . . . . . . . . . . . . . . . . . . 42
Signature . . . . . . . . . . . . . . . . . . . . . . . . . 43
Schedule A - Information Relating To Purchasers
Schedule B - Defined Terms
Schedule 5.4 - Subsidiaries, Affiliates and Directors and Senior
Officers of the Company
Schedule 5.5 - Financial Statements
Schedule 5.11 - Patents, etc.
Schedule 5.15 - Existing Debt
Schedule 10.5 - Existing Liens
Exhibit 1 - Form of 7.41% Series A Senior Note, Tranche A, due
October 15, 2008
Exhibit 2 - Form of 7.51% Series A Senior Note, Tranche B, due
October 15, 2011
Exhibit 4.4(a) - Form of Opinion of Special Counsel for the Company
Exhibit 4.4(b) - Form of Opinion of Special Counsel for the
Purchasers
Exhibit S - Form of Supplement to Note Purchase Agreement
The Marcus Corporation
250 East Wisconsin Avenue, Suite 1700
Milwaukee, Wisconsin 53202
7.41% Series A Senior Notes, Tranche A, due October 15, 2008
and
7.51% Series A Senior Notes, Tranche B, due October 15, 2011
October 25, 1996
To each of the Purchasers listed in
the attached Schedule A:
Ladies and Gentlemen:
The Marcus Corporation, a Wisconsin corporation (the "Company"), agrees
with you as follows:
Section 1. Authorization of Notes;.
The Company will authorize the issue and sale of (i) $60,000,000
aggregate principal amount of its 7.41% Series A Senior Notes, Tranche A,
due October 15, 2008 (the "Tranche A Notes") and (ii) $25,000,000
aggregate principal amount of its 7.51% Series A Senior Notes, Tranche B,
due October 15, 2011 (the "Tranche B Notes", and together with the Tranche
A Notes, the "Series A Notes"). The Series A Notes together with each
Series of Additional Notes which may from time to time be issued pursuant
to the provisions of Section 2.2 are collectively referred to as the
"Notes" (such term shall also include any such notes issued in
substitution therefor pursuant to Section 13 of this Agreement or the
Other Agreements (as hereinafter defined)). The Tranche A Notes and the
Tranche B Notes shall be substantially in the forms set out in Exhibits 1
and 2, respectively, with such changes therefrom, if any, as may be
approved by you and the Company. 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.
Section 2. Sale and Purchase of Notes;.
Section 2.1. Series A Notes;. Subject to the terms and conditions of
this Agreement, the Company will issue and sell to you and you will
purchase from the Company, at the Closing provided for in Section 3,
Series A Notes of the Tranche and in the principal amount specified
opposite your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this
Agreement, the Company is entering into separate Note Purchase Agreements
(the "Other Agreements," and together with this Agreement, the
"Agreements") identical with this Agreement 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 Series A Notes of
the Tranche and in the principal amount specified opposite its name in
Schedule A. Your obligation hereunder, and the obligations of the Other
Purchasers under the Other Agreements and the obligations of the
Additional Purchasers under the Supplements, are several and not joint
obligations, and you shall have no obligation under any Other Agreement
or any Supplement and no liability to any Person for the performance or
nonperformance by any Other Purchaser or Additional Purchaser thereunder.
Section 2.2. Additional Series of Notes;. The Company may, from time
to time, in its sole discretion but subject to the terms hereof, issue and
sell one or more additional Series of its unsecured promissory notes under
the provisions of the Agreements pursuant to a supplement (a "Supplement
") substantially in the form of Exhibit S. Each additional Series of
Notes (the "Additional Notes ") issued pursuant to a Supplement shall be
subject to the following terms and conditions:
(i) each Series of Additional Notes, when so issued, shall be
differentiated from all previous series by sequential alphabetical
designation inscribed thereon;
(ii) Additional Notes of the same Series may consist of more than one
different and separate tranches and may differ with respect to outstanding
principal amounts, maturity dates, interest rates and premiums, if any,
and price and terms of redemption or payment prior to maturity, but all
such different and separate tranches of the same Series shall vote as a
single class and constitute one Series;
(iii) each Series of Additional Notes shall be dated the date of
issue, bear interest at such rate or rates, mature on such date or dates,
be subject to such mandatory and optional prepayment on the dates and at
the premiums, if any, have such additional or different conditions
precedent to closing, such representations and warranties and such
additional covenants as shall be specified in the Supplement under which
such Additional Notes are issued, provided, that any such additional
covenants shall inure to the benefit of all holders of Notes so long as
any Additional Notes issued pursuant to such Supplement remain
outstanding;
(iv) each Series of Additional Notes issued under the Agreements
shall be in substantially the form of Exhibit 1 to Exhibit S hereto with
such variations, omissions and insertions as are necessary or permitted
hereunder;
(v) the minimum principal amount of any Note issued under a
Supplement shall be $500,000, except as may be necessary to evidence the
outstanding amount of any Note originally issued in a denomination of
$500,000 or more;
(vi) all Additional Notes shall constitute Senior Debt of the Company
and shall rank pari passu with all other outstanding Notes; and
(vii) no Additional Notes shall be issued hereunder if at the time of
issuance thereof and after giving effect to the application of the
proceeds thereof, any Default or Event of Default shall have occurred and
be continuing.
Section 3. Closing;.
The sale and purchase of the Series A Notes to be purchased by you
and the Other Purchasers shall occur at the offices of Chapman and Cutler,
111 West Monroe Street, Chicago, Illinois 60603, at 11:00 a.m. Chicago
time, at a closing (the "Closing") on October 25, 1996 or on such other
Business Day thereafter on or prior to October 31, 1996 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 in the form
of a single Note (or such greater number of Notes in denominations of at
least $500,000 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 for the benefit of the Company to the account of its
Wholly-Owned Subsidiary, First American Finance Corporation, Account No.
55025-1015 at Bank One Milwaukee, N.A., Milwaukee, Wisconsin (ABA
#075-000019). 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.
Section 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:
Section 4.1. 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.
Section 4.2. 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 as contemplated by Schedule
5.14), no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Restricted Subsidiary shall have
entered into any transaction since the date of the Memorandum that would
have been prohibited by the covenants contained in Section 10 hereof had
such covenants applied since such date.
Section 4.3. 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 certifying as to the resolutions attached thereto and
other corporate proceedings relating to the authorization, execution and
delivery of the Notes and the Agreements.
Section 4.4. Opinions of Counsel;. You shall have received opinions
in form and substance satisfactory to you, dated the date of the Closing
(a) from Robin J. Irwin, Esq., counsel for the Company, covering the
matters set forth in Exhibit 4.4(a) and covering such other matters
incident to the transactions contemplated hereby as you or your counsel
may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Chapman and Cutler, your special
counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(b) and covering such other matters incident to
such transactions as you may reasonably request.
Section 4.5. Purchase Permitted By Applicable Law, etc';. On the date
of the Closing your purchase of Notes shall (a) be permitted by the laws
and regulations of each jurisdiction to which you are subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York
Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b)
not violate any applicable law or regulation (including, without
limitation, Regulation G, T 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.
Section 4.6. Sale of Other Notes;. Contemporaneously with the
Closing, 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.
Section 4.7. Payment of Special Counsel Fees.; Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the
Closing the fees, charges and disbursements of your special counsel
referred to in Section 4.4 to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior to the
Closing.
Section 4.8. Private Placement Number;. A Private Placement Number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the
Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained for the Tranche A Notes and the
Tranche B Notes.
Section 4.9. 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.
Section 4.10. 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.
Section 4.11. Conditions to Issuance of Additional Notes;. The
obligations of the Additional Purchasers to purchase such Additional Notes
shall be subject to the following conditions precedent, in addition to the
conditions specified in the Supplement pursuant to which such Additional
Notes may be issued:
(a) Compliance Certificate. A duly authorized Senior Financial
Officer shall execute and deliver to each Additional Purchaser an
Officer's Certificate dated the date of issue of such Series of Additional
Notes stating that such officer has reviewed the provisions of the
Agreements (including any Supplements thereto) and setting forth the
information and computations (in sufficient detail) required in order to
establish whether the Company is in compliance with the requirements of
Section 10.3 on such date.
(b) Execution and Delivery of Supplement. The Company and each such
Additional Purchaser shall execute and deliver a Supplement substantially
in the form of Exhibit S hereto.
(c) Representations of Additional Purchasers. Each Additional
Purchaser shall have confirmed in the Supplement that the representations
set forth in Section 6 are true with respect to such Additional Purchaser
on and as of the date of issue of the Additional Notes.
Section 5. Representations and Warranties of the Company;.
The Company represents and warrants to you that:
Section 5.1. 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 Series A Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, etc;. This Agreement, the Other
Agreements and the Series A 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 (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 5.3. Disclosure;. The Company, through its agent, BA
Securities, Inc., has delivered to you and each Other Purchaser a copy of
a Private Placement Memorandum, dated September, 1996 (the "Memorandum"),
relating to the transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature of the business
and principal properties of the Company and its Restricted Subsidiaries.
This Agreement, the Memorandum, the documents, certificates or other
writings delivered to you by or on behalf of the Company in connection
with the transactions contemplated hereby 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 May 30, 1996, there has
been no change in the financial condition, operations, business,
properties or prospects of the Company or any Restricted Subsidiary except
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 Memorandum or in the
other documents, certificates and other writings delivered to you by or on
behalf of the Company specifically for use in connection with the
transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Restricted
Subsidiaries; Affiliates and Investments';. (a) Schedule 5.4 contains
(except as noted therein) complete and correct lists (i) of the Company's
Restricted and Unrestricted Subsidiaries, and 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) of the Company's Affiliates, other than
Unrestricted Subsidiaries, (iii) of the Company's directors and senior
officers and (iv) the Investments existing at the Closing, other than
Investments in Subsidiaries and Affiliates.
(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 or
other legal entity 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 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.
Section 5.5. Financial Statements;. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on 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
financial statements 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).
Section 5.6. Compliance with Laws, Other Instruments, etc;. The
execution, delivery and performance by the Company of this Agreement and
the Series A Notes will not (a) 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 Restricted 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 Restricted Subsidiary is bound or
by which the Company or any Restricted Subsidiary or any of their
respective properties may be bound or affected, (b) 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 Restricted
Subsidiary or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Restricted Subsidiary.
Section 5.7. Governmental Authorizations, etc;. No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Agreement or the Series A
Notes.
Section 5.8. Litigation; Observance of Agreements, Statutes and
Orders';. (a) There are no actions, suits or proceedings pending or, to
the knowledge of the Company, threatened against or affecting the Company
or any Restricted Subsidiary or any property of the Company or any
Restricted 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 Restricted 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.
Section 5.9. 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) the amount of which is not individually or in
the aggregate Material or (b) 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 could
reasonably be expected to have a Material Adverse Effect. 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 May 31,
1991.
Section 5.10. Title to Property; Leases';. The Company and its
Restricted Subsidiaries have good and sufficient title to their respective
properties that individually or in the aggregate are Material, including
all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the
Company or any Restricted 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 prohibited by this Agreement. 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.
Section 5.11. Licenses, Permits, etc;. Except as disclosed in Schedule
5.11,
(a) the Company and its Restricted 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 mark, 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
Restricted Subsidiaries with respect to any patent, copyright, service
mark, trademark, trade name or other right owned or used by the Company or
any of its Restricted Subsidiaries.
Section 5.12. 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 terms "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 post-retirement 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 Restricted
Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance
and sale of the Notes hereunder will not involve any transaction that is
subject to the prohibitions of section 406 of ERISA or in connection with
which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the
Code. The representation by the Company in the first sentence of this
Section 5.12(e) is made in reliance upon and subject to the accuracy of
your representation in Section 6.2 as to the sources of the funds used to
pay the purchase price of the Notes to be purchased by you.
Section 5.13. Private Offering by the Company;. Neither the Company
nor anyone acting on its behalf has offered the Series A 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, the Other Purchasers and not more than 70 other
Institutional Investors, each of which has been offered the Series A 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 Series A Notes to the registration requirements of
Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations';. The Company will
apply the proceeds of the sale of the Series A Notes to repay outstanding
indebtedness and for general corporate purposes. No part of the proceeds
from the sale of the Series A Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within
the meaning of Regulation G of the Board of Governors of the Federal
Reserve System (12 CFR 207), 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 (12 CFR 224) or to
involve any broker or dealer in a violation of Regulation T of said Board
(12 CFR 220). 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 G.
Section 5.15. Existing Debt; Future Liens';. (a) Except as described
therein, Schedule 5.15 sets forth a complete and correct list of all
outstanding Debt of the Company and its Restricted Subsidiaries as of
August 22, 1996, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities
of the Debt of the Company or its Restricted Subsidiaries. Neither the
Company nor any Restricted Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any principal or
interest on any Debt of the Company or such Restricted Subsidiary and no
event or condition exists with respect to any Debt of the Company or any
Restricted Subsidiary that would permit (or that with notice or the lapse
of time, or both, would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before its regularly
scheduled dates of payment.
(b) Neither the Company nor any Restricted 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 10.5.
Section 5.16. Foreign Assets Control Regulations, etc;. Neither the
sale of the Series A 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.
Section 5.17. Status under Certain Statutes;. Neither the Company nor
any Restricted Subsidiary is an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, or is subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, the ICC Termination Act of 1995 or the
Federal Power Act, as amended.
Section 5.18. Environmental Matters;. Neither the Company nor any
Restricted 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 Restricted 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:
(a) neither the Company nor any Restricted 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 Restricted Subsidiaries has
stored any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them and or has 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 Restricted 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.
Section 6. Representations of the Purchaser;.
Section 6.1. Purchase for Investment;. You represent that you are
purchasing the Series A Notes for your own account or for one or more
separate accounts maintained by you or for the account of one or more
pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times
be within your or their control. You understand that the Series A 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 Series A Notes.
.c2.Section 6.2. Source of Funds;. You represent that at least one of the
following statements is an accurate representation as to each source of
funds (a "Source") to be used by you to pay the purchase price of the
Series A Notes to be purchased by you hereunder:
(a) if you are an insurance company, the Source is an "insurance
company general account" within the meaning of Department of Labor
Prohibited Transaction Exemption 95-60 (issued July 12, 1995) and there is
no "employee benefit plan" (within the meaning of Section 3(3) of ERISA or
Section 4975(e)(1) of the Code), treating as a single plan, all plans
maintained by the same employer or employee organization, with respect to
which the amount of the general account reserves and liabilities for all
contracts held by or on behalf of such plan, exceed ten percent (10%) of
the total reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the NAIC
Annual Statement filed with your state of domicile; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of Prohibited Transaction Exemption ("PTE")
90-1 (issued January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
you have disclosed to the Company in writing pursuant to this paragraph
(b), no employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund" (within
the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part l(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
of such QPAM and (ii) the names of all employee benefit plans whose assets
are included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Company in writing pursuant to
this paragraph (e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
The Company shall deliver a certificate on the date of the Closing,
with respect to you and the Other Purchasers, on the date of the issuance
of any Additional Notes, with respect to any Additional Purchasers and on
or prior to the date of any transfer of any Notes, with respect to any
subsequent holder of such Notes, which certificate shall either state that
(i) it is neither a "party in interest" (as defined in Title I, Section
3(14) of ERISA) nor a "disqualified person" (as defined in Section
4975(e)(2) of the Code), with respect to any plan identified pursuant to
paragraphs (b) or (e) above, or (ii) with respect to any plan, identified
pursuant to paragraph (c) above, neither it nor any "affiliate" (as
defined in Section V(c) of the QPAM Exemption) has at this time, and
during the immediately preceding one year has exercised the authority to
appoint or terminate said QPAM as manager of the assets of any plan
identified in writing pursuant to paragraph (c) above or to negotiate the
terms of said QPAM's management agreement on behalf of any such identified
plans.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account" shall have
the respective meanings assigned to such terms in Section 3 of ERISA.
Section 7. Information as to Company;.
Section 7.1. Financial and Business Information;. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements - within 60 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:
(i) 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 105 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 by an opinion thereon of independent certified
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, 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 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 Restricted Subsidiary to public
securities holders generally, 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 Restricted Subsidiary with the Securities and
Exchange Commission and of all press releases and other statements made
available generally by the Company or any Restricted 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 or that any Person has given
any notice or taken any action with respect to a claimed default hereunder
or that any Person has given any notice or taken any action with respect
to a claimed default of the type referred to in Section 11(f), 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) Notices from Governmental Authority - promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or
any Restricted 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;
(g) Supplements - promptly and in any event within 10 Business Days
after the execution and delivery of any Supplement, a copy thereof; and
(h) 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.
Notwithstanding the foregoing, in the event that one or more
Unrestricted Subsidiaries shall either (i) own more than 10% of the total
consolidated assets of the Company and its Subsidiaries, or (ii) account
for more than 10% of the consolidated gross revenues of the Company and
its Subsidiaries, determined in each case in accordance with GAAP, then,
within the respective periods provided in Sections 7.1(a) and (b), above,
the Company shall deliver to each holder of Notes that is an Institutional
Investor, financial statements of the character and for the dates and
periods as in said Sections 7.1(a) and (b) covering the group of
Unrestricted Subsidiaries (on a consolidated basis), together with a
consolidating statement reflecting eliminations or adjustments required to
reconcile the financial statements of such group of Unrestricted
Subsidiaries to the financial statements delivered pursuant to Sections
7.1(a) and (b).
Section 7.2. 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) hereof 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 Section 10.2 through Section 10.8
hereof, inclusive, 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) Event of Default - a statement that such 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 Restricted 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 Restricted
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.
Section 7.3. 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
Restricted 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 Restricted 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 Restricted 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 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 Restricted Subsidiaries), all at such times and as
often as may be requested.
Section 8. Prepayment of the Series A Notes;.
Section 8.1. Required Prepayments;. (a) Tranche A Notes. On October
15, 2000 and on each October 15 thereafter to and including October 15,
2007, the Company will prepay $6,666,666 principal amount (or such lesser
principal amount as shall then be outstanding) of the Tranche A Notes at
par and without payment of the Make-Whole Amount or any premium. The
entire remaining principal amount of the Tranche A Notes shall become due
and payable on October 15, 2008. For purposes of this Section 8.1(a), any
prepayment of less than all of the outstanding Tranche A Notes pursuant to
Section 8.2 shall be deemed to be applied first to the amount of principal
scheduled to be repaid on October 15, 2008, and then to the remaining
scheduled principal payments, if any, in inverse chronological order.
(b) Tranche B Notes. On October 15, 2001 and on each October 15
thereafter to and including October 15, 2010, the Company will prepay
$2,272,727 principal amount (or such lesser principal amount as shall then
be outstanding) of the Tranche B Notes at par and without payment of the
Make-Whole Amount or any premium. The entire remaining principal amount
of the Tranche B Notes shall become due and payable on October 15, 2011.
For purposes of this Section 8.1(b), any prepayment of less than all of
the outstanding Tranche B Notes pursuant to Section 8.2 shall be deemed to
be applied first to the amount of principal scheduled to be repaid on
October 15, 2011, and then to the remaining scheduled principal payments,
if any, in inverse chronological order.
(c) Application of Partial Redemption. In the event of any purchase
or other acquisition permitted by Section 8.5 of less than all of the
Notes of any Series, or any tranche of Notes within a Series (a "Partial
Redemption"), the amount of the payment required at maturity for such
Series of Notes, or the applicable tranche of Notes within such Series, as
the case may be, and each regularly scheduled prepayment required to be
made pursuant to this Section 8.1 or any Supplement for such Series of
Notes, or the applicable tranche of Notes within such Series, as the case
may be, shall be reduced in the proportion that the principal amount of
such Partial Redemption bears to the unpaid principal amount of the Notes
of such Series, or the applicable tranche of Notes within such Series, as
the case may be, immediately prior to such Partial Redemption (after
giving effect to any regularly scheduled prepayment made on such Series of
Notes, or the applicable tranche of Notes within such Series, as the case
may be, pursuant to this Section 8.1 or any Supplement on the date of such
Partial Redemption).
Section 8.2. Optional Prepayments with Make-Whole Amount;. The
Company may, at its option, upon notice as provided below, prepay at any
time all, or from time to time any part of (but if in part then in a
minimum principal amount of $500,000), the outstanding Notes of any Series
on any interest payment date for the Notes of such Series at 100% of the
principal amount so prepaid, and accrued interest thereon to the date of
prepayment, plus the Make-Whole Amount determined for the prepayment date
with respect to such principal amount of each Note of the applicable
Series then outstanding. The Company will give each holder of Notes of
the Series to be prepaid written notice of each optional prepayment under
this Section 8.2 not less than 30 days and not more than 60 days prior to
the date fixed for such prepayment. Each such notice shall specify such
date, the aggregate principal amount of the Notes and each Series of Notes
to be prepaid on such date, the principal amount of each Note held by such
holder to be prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to such principal
amount being prepaid, and shall be accompanied by a certificate of a
Senior Financial Officer as to the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of such notice
were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company
shall deliver to each holder of Notes of the Series to be prepaid a
certificate of a Senior Financial Officer specifying the calculation of
such Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments;. In the case of each
partial prepayment of the Notes pursuant to the provisions of Section 8.2,
the principal amount of the Notes of the Series to be prepaid shall be
allocated among all of the Notes of such Series at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid principal
amounts thereof. In the case of each required prepayment of the Series A
Notes pursuant to Section 8.1, the principal amount of the Tranche to be
prepaid shall be allocated among all of the Notes of such Tranche at the
time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof. All regularly scheduled
partial prepayments made with respect to any Additional Series of Notes
pursuant to any Supplement shall be allocated as therein provided.
Section 8.4. 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 and the applicable Make-Whole Amount, if any.
From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, 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.
Section 8.5. Purchase of Notes;. The Company will not and will not
permit any Restricted Subsidiary or any Affiliate to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of the Agreements (including any Supplement
thereto) and the Notes. The Company will promptly cancel all Notes
acquired by it or any Restricted Subsidiary or any Affiliate pursuant to
any payment, prepayment or purchase of Notes pursuant to any provision of
the Agreements and no Notes may be issued in substitution or exchange for
any such Notes.
Section 8.6. Make-Whole Amount for Series A Notes;. The term
"Make-Whole Amount" means, with respect to any Series A Note of any
Tranche, an amount equal to the excess, if any, of the Discounted Value of
the Remaining Scheduled Payments with respect to the Called Principal of
such Series A Note of such Tranche over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be less
than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Series A Note of any
Tranche, the principal of such Series A Note of such Tranche that is to be
prepaid pursuant to Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context
requires.
"Discounted Value" means, with respect to the Called Principal of any
Series A Note of any Tranche, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Settlement Date with respect
to such Called Principal, in accordance with accepted financial practice
and at a discount factor (applied on the same periodic basis as that on
which interest on the Series A Note of such Tranche is payable) equal to
the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Series A Note of any Tranche, 0.50% over the yield to maturity implied
by (i) the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 500" on the Telerate
Access Service (or such other display as may replace Page 500 on Telerate
Access Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as
of such Settlement Date, or (ii) if such yields are not reported as of
such time or the yields reported as of such time are not ascertainable,
the Treasury Constant Maturity Series Yields reported, for the latest day
for which such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H. 15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having
a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill quotations
to bond-equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the actively traded U.S.
Treasury security with the duration closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury security
with the duration closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year) obtained
by dividing (i) such Called Principal into (ii) the sum of the products
obtained by multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (b) the number
of years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Series A Note of any Tranche, all payments of such Called
Principal and interest thereon that would be due after the Settlement Date
with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Series A Note of such Tranche, then the amount
of the next succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and required to be paid
on such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Series A Note of any Tranche, the date on which such Called Principal is
to be prepaid pursuant to Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context
requires.
Section 9. Affirmative Covenants;.
The Company covenants that so long as any of the Notes are
outstanding:
Section 9.1. Compliance with Law;. The Company will, and will cause
each of its Restricted 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.
Section 9.2. Insurance;. The Company will, and will cause each of its
Restricted Subsidiaries to, maintain, with financially sound and reputable
insurers, 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, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto)
as is customary in the case of entities of established reputations engaged
in the same or a similar business and similarly situated.
Section 9.3. Maintenance of Properties;. The Company will, and will
cause each of its Restricted 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 Restricted 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.
Section 9.4. 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 claims if (i) the amount, applicability or
validity thereof is contested by the Company or such Restricted 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.
Section 9.5. Corporate Existence, etc;. The Company will at all times
preserve and keep in full force and effect its corporate existence.
Subject to Section 10.7, the Company will at all times preserve and keep
in full force and effect the corporate existence of each of its Restricted
Subsidiaries (unless merged into the Company or a Wholly-Owned Restricted
Subsidiary) and all rights and franchises of the Company and its
Restricted 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.
Section 10. Negative Covenants;.
The Company covenants that so long as any of the Notes are
outstanding:
Section 10.1. Transactions with Affiliates;. The Company will not and
will not permit any Restricted 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, except in the ordinary course and pursuant to the reasonable
requirements of the Company's or such Restricted Subsidiary's business and
upon fair and reasonable terms no less favorable to the Company or such
Restricted Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
Section 10.2. Consolidated Operating Cash Flow;. The Company will not
permit the Consolidated Operating Cash Flow Ratio for each period of four
consecutive fiscal quarters (determined as of the last day of each fiscal
quarter) to be less than 2.50 to 1.00.
Section 10.3. Limitations on Debt;. The Company will not at any time
permit Consolidated Debt to exceed 65% of Consolidated Total
Capitalization.
Section 10.4. Limitations on Priority Debt;. The Company will not, and
will not permit any Restricted Subsidiary to, create, assume or incur or
in any manner be or become liable in respect of any Priority Debt, unless
at the time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof, Priority Debt shall not exceed 20% of
Consolidated Total Capitalization.
Any corporation which becomes a Restricted Subsidiary after the date
of this Agreement shall, for all purposes of this Section 10.4, be deemed
to have created, assumed or incurred, at the time it becomes a Restricted
Subsidiary, all Priority Debt of such corporation existing immediately
after it becomes a Restricted Subsidiary.
Section 10.5. Limitation on Liens;. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly
create, incur, assume or permit to exist (upon the happening of a
contingency or otherwise) any Lien on or with respect to any property or
asset (including, without limitation, any document or instrument in
respect of goods or accounts receivable) of the Company or any such
Restricted Subsidiary, whether now owned or held or hereafter acquired, or
any income or profits therefrom, or assign or otherwise convey any right
to receive income or profits, except:
(a) Liens for property taxes and assessments or governmental charges
or levies and Liens securing claims or demands of mechanics and
materialmen, provided payment thereof is not at the time required by
Section 9.4;
(b) Liens incidental to the normal conduct of business of the
Company or any Restricted Subsidiary or to secure claims for labor,
materials or supplies in respect of obligations not overdue or in
connection with the ownership of its property (including Liens in
connection with worker's compensation, unemployment insurance and other
like laws, warehousemen's and attorney's liens and statutory landlords'
liens) which are not incurred in connection with the incurrence of Debt or
the borrowing of money and which do not in the aggregate Materially impair
the use of such property in the operation of the business of the Company
and its Restricted Subsidiaries, taken as a whole, or the value of such
property for the purpose of such business;
(c) Liens created by or resulting from any litigation or legal
proceeding which is currently being contested in good faith by appropriate
proceedings or which result from a final, nonappealable judgment which is
satisfied, or whose satisfaction is assured by the posting of a bond or
other collateral, within 60 days after such judgment becomes final and
nonappealable;
(d) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens, in existence less than 60 days (or in the case of any
Lien with respect to which the underlying claim shall currently be
contested by the Company or such Restricted Subsidiary in good faith by
appropriate proceedings, the period of time during which such Lien is
being contested) from the date of creation thereof in respect of
obligations not overdue or deposits to obtain the release of such Liens;
(e) Liens securing Debt of a Restricted Subsidiary to the Company or
to another Restricted Subsidiary;
(f) Liens existing as of the date of Closing and reflected in
Schedule 10.5;
(g) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Company and its Restricted Subsidiaries or which customarily exist on real
properties of corporations engaged in similar activities and similarly
situated and which do not in any event Materially detract from the value
of such real property;
(h) leases or subleases granted to any Person by the Company or any
Restricted Subsidiary, as lessor or sublessor, on any property owned or
leased by the Company or any Restricted Subsidiary, provided that in each
case such lease or sublease shall not Materially detract from the value of
the property leased or subleased;
(i) Liens incurred after the date of Closing and existing on
property of any business entity at the time of acquisition of such
business entity by the Company or a Restricted Subsidiary, so long as such
Liens were not incurred, extended or renewed in contemplation of the
acquisition of such business entity, provided that (i) the Lien shall
attach solely to the property of the business entity so acquired, (ii) at
the time of acquisition of such business entity, the aggregate amount
remaining unpaid on all Debt secured by Liens on the property of such
business entity, whether or not assumed by the Company or a Restricted
Subsidiary, shall not exceed an amount equal to the lesser of the total
purchase price or fair market value at the time of acquisition of such
business entity (as determined in good faith by the Board of Directors of
the Company or any Restricted Subsidiary, as the case may be), and (iii)
the aggregate principal amount of all Debt secured by such Liens shall be
permitted by the limitations set forth in Sections 10.3 and 10.4;
(j) Liens incurred after the date of Closing given to secure the
payment of the purchase price incurred in connection with the acquisition
or construction of property (other than accounts receivable or inventory)
useful and intended to be used in carrying on the business of the Company
or a Restricted Subsidiary, including Liens existing on such property at
the time of acquisition or construction thereof, or Liens incurred within
180 days of such acquisition or the completion of such construction,
provided that (i) the Lien shall attach solely to the property acquired,
purchased or constructed, (ii) at the time of acquisition or construction
of such property, the aggregate amount remaining unpaid on all Debt
secured by Liens on such property, whether or not assumed by the Company
or a Restricted Subsidiary, shall not exceed an amount equal to the lesser
of the total purchase price or fair market value at the time of
acquisition or construction of such property (as determined in good faith
by the Board of Directors of the Company or any Restricted Subsidiary, as
the case may be), and (iii) the aggregate principal amount of all Debt
secured by such Liens shall be permitted by the limitations set forth in
Sections 10.3 and 10.4;
(k) any extensions, renewals or replacements of any Lien permitted
by the preceding subparagraphs (a) through (j) inclusive, of this Section
10.5, provided that (i) no additional property shall be encumbered by such
Liens, (ii) the unpaid principal amount of the Debt secured thereby shall
not be increased on or after the date of any extension, renewal or
replacement, (iii) the weighted average life to maturity of the Debt
secured by such Liens shall not be reduced, and (iv) at such time and
immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing; and
(l) in addition to the Liens permitted by the preceding
subparagraphs (a) through (k), inclusive, of this Section 10.5, Liens
securing Priority Debt of the Company or any Restricted Subsidiary,
provided that such Priority Debt shall be permitted by the applicable
limitations set forth in Sections 10.3 and 10.4.
Section 10.6. Sales of Assets;. The Company will not, and will not
permit any Restricted Subsidiary to, sell, lease or otherwise dispose of
any substantial part (as defined below) of the assets of the Company and
its Restricted Subsidiaries; provided, however, that the Company or any
Restricted Subsidiary may sell, lease or otherwise dispose of assets
constituting a substantial part of the assets of the Company and its
Restricted Subsidiaries if, at such time and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing and
an amount equal to the net proceeds received from such sale, lease or
other disposition shall be used:
(1) within 180 days of such sale, lease or disposition, to acquire
property, plant and equipment used or useful in carrying on the business
of the Company and its Restricted Subsidiaries (or the Company or any
Restricted Subsidiary shall be unconditionally committed to acquire such
property) and having a value at least equal to the value of such assets
sold, leased or otherwise disposed of; or
(2) to prepay or retire Senior Debt of the Company and/or its
Restricted Subsidiaries, in which case the Notes will be prepaid, ratably
in accordance with the unpaid principal amount of such Senior Debt, in
compliance with Section 8.2.
As used in this Section 10.6, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the
Company and its Restricted Subsidiaries if the book value of such assets,
when added to the book value of all other assets sold, leased or otherwise
disposed of by the Company and its Restricted Subsidiaries (other than in
transactions in the ordinary course of business and Excluded Sale and
Leaseback Transaction) during any fiscal year of the Company, exceeds 10%
of the book value of Consolidated Total Assets, determined as of the end
of the fiscal year immediately preceding such sale, lease or other
disposition.
Section 10.7. Merger, Consolidation and Sale of Stock;. (a) The
Company will not, and will not permit any Restricted Subsidiary to,
consolidate with or be a party to a merger with any other corporation;
provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or into
the Company or any Wholly-Owned Restricted Subsidiary, so long as in any
merger or consolidation involving the Company, the Company shall be the
surviving or continuing corporation; and
(2) the Company may consolidate or merge with any other corporation
if (i) either (x) the Company shall be the surviving or continuing
corporation, or (y) if the surviving or continuing entity is other than
the Company, (A) such entity is organized under the laws of the United
States or any jurisdiction thereof, (B) such entity expressly assumes, by
written agreement satisfactory in scope and form to the holders of more
than 50% in aggregate principal amount of the outstanding Notes, all
obligations of the Company under the Notes and this Agreement and the
Other Agreements, and (C) such entity shall cause to be delivered to each
holder of Notes an opinion of independent counsel to the effect that all
agreements or instruments effecting such assumption are enforceable in
accordance with their terms and comply with the provisions of this Section
10.7 and otherwise satisfactory in scope and form to the holders of more
than 50% in aggregate principal amount of the outstanding Notes, and (ii)
at the time of such consolidation or merger and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing.
(b) The Company will not permit any Restricted Subsidiary to issue
or sell any shares of stock of any class (including as "stock" for the
purposes of this Section 10.7(b), any warrants, rights or options to
purchase or otherwise acquire stock or other securities exchangeable for
or convertible into stock) of such Restricted Subsidiary to any Person
other than the Company or a Restricted Subsidiary, except for the purpose
of qualifying directors, or except in satisfaction of the validly
pre-existing preemptive rights of minority shareholders in connection with
the simultaneous issuance of stock to the Company and/or a Restricted
Subsidiary whereby the Company and/or such Restricted Subsidiary maintain
their same proportionate interest in such Restricted Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any
shares of stock of any Restricted Subsidiary (except to qualify
directors), and will not permit any Restricted Subsidiary to sell,
transfer or otherwise dispose of (except to the Company or a Wholly-Owned
Restricted Subsidiary) any shares of stock of any other Restricted
Subsidiary, unless such sale or other disposition does not involve a
substantial part (as defined in Section 10.6) of the assets of the Company
and its Restricted Subsidiaries.
Section 10.8. Designation of Restricted and Unrestricted Subsidiaries;.
(a) The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary and may designate any Restricted
Subsidiary as an Unrestricted Subsidiary, provided that (i) at such time
and immediately after giving effect thereto (x) the Company would be
permitted to incur at least $1.00 of additional Priority Debt under the
limitations of Section 10.4, and (y) no Default or Event of Default shall
have occurred and be continuing, and (ii) the designation of such
Subsidiary as Restricted or Unrestricted shall not be changed pursuant to
this Section 10.8 on more than two occasions. The Company shall, within
10 days after the designation of any Subsidiary as Restricted or
Unrestricted, give written notice of such action to each holder of a Note.
(b) The Company acknowledges and agrees that if, after the date
hereof, any Person becomes a Restricted Subsidiary, all Debt, leases and
other obligations and all Liens and Investments of such Person existing as
of the date such Person becomes a Restricted Subsidiary shall be deemed,
for all purposes of this Agreement, to have been incurred, entered into,
made or created at the same time such Person so becomes a Restricted
Subsidiary.
Section 10.9. Nature of Business;. Neither the Company nor any
Restricted Subsidiary will engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis, which would
then be engaged in by the Company and its Restricted Subsidiaries would be
substantially changed from the general nature of the business engaged in
by the Company and its Restricted Subsidiaries on the date of this
Agreement.
Section 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
Make-Whole Amount, if any, on any Note for more than one Business Day
after the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise, or the Company makes
the payment of any principal or Make-Whole Amount, if any, on the Notes on
the Business Day immediately following the Business Day in which such
payment is due and payable on more than five occasions; 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 10; or
(d) the Company defaults in the performance of or compliance with
any term contained herein or in any Supplement (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 the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving
written notice of such default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer specifically
to this paragraph (d) of Section 11); 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 any
Supplement or in any writing furnished in connection with the transactions
contemplated hereby or thereby proves to have been false or incorrect in
any material respect on the date as of which made; or
(f) (i) the Company or any Restricted Subsidiary is in default in
the performance of or compliance with any term of any evidence of any Debt
in an aggregate outstanding principal amount of at least $10,000,000 or of
any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such
Debt has become, or has been declared, due and payable before its stated
maturity or before its regularly scheduled dates of payment, or (ii) as a
consequence of the occurrence or continuation of any event or condition
(other than the passage of time or the right of the holder of Debt to
convert such Debt into equity interests), (x) the Company or any
Restricted Subsidiary has become obligated to purchase or repay Debt
before its regular maturity or before its regularly scheduled dates of
payment in an aggregate outstanding principal amount of at least
$10,000,000, or (y) one or more Persons have the right to require the
Company or any Restricted Subsidiary so to purchase or repay such Debt; or
(g) the Company or any of its Material Subsidiaries (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
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any of its
Material Subsidiaries, 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 of its Material Subsidiaries, or any
such petition shall be filed against the Company or any of its Material
Subsidiaries and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 are rendered against one or more of
the Company and its Restricted Subsidiaries and which judgments are not,
within 60 days after entry thereof, bonded, discharged or stayed pending
appeal, or are not discharged within 60 days after the expiration of such
stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under section 412 of the Code, (ii) a notice of intent to
terminate any Plan shall have been or is reasonably expected to be filed
with the PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer any Plan or
the PBGC shall have notified the Company or any ERISA Affiliate that a
Plan may become a subject of any such proceedings, (iii) the aggregate
"amount of unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title
IV of ERISA, shall exceed $10,000,000, (iv) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected to incur 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, (v) the Company
or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the
Company or any Restricted Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner that would increase the liability of the Company or any Restricted
Subsidiary thereunder; and any such event or events described in clauses
(i) through (vi) above, either individually or together with any other
such event or events, could reasonably be expected to have a Material
Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
Section 12. Remedies on Default, etc;.
Section 12.1. Acceleration;. (a) If an Event of Default with respect
to the Company described in paragraph (g) or (h) of Section 11 (other than
an Event of Default described in clause (i) of paragraph (g) or described
in clause (vi) of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all the Notes of
every Series then outstanding shall automatically become immediately due
and payable.
(b) If any other Event of Default has occurred and is continuing,
any holder or holders of at least 25% in aggregate principal amount of the
Notes of any Series at the time outstanding may at any time at its or
their option, by notice or notices to the Company, declare all the Notes
of such Series then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing with respect to any Series of
Notes, any holder or holders of Notes of such Series at the time
outstanding affected by such Event of Default may at any time, at its or
their option, by notice or notices to the Company, declare all the Notes
of such Series held by it or them to be immediately due and payable.
Upon any Note becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Note will forthwith mature
and the entire unpaid principal amount of such Note, plus (x) all accrued
and unpaid interest thereon and (y) the Make-Whole Amount determined in
respect of such principal amount (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. The Company acknowledges, and the parties hereto
agree, that each holder of a Note has the right to maintain its investment
in the Notes free from repayment by the Company (except as herein
specifically provided for), and that the provision for payment of a
Make-Whole Amount by the Company in the event that the Notes are prepaid
or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such
circumstances.
Section 12.2. 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.
Section 12.3. Rescission;. At any time after any Notes of any Series
have been declared due and payable pursuant to clause (b) or (c) of
Section 12.1, the holders of not less than 76% in aggregate principal
amount of the Notes of such Series then outstanding, 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
of such Series, all principal of and Make-Whole Amount, if any, on any
Notes of such Series that are due and payable and are unpaid other than by
reason of such declaration, and all interest on such overdue principal and
Make-Whole Amount, if any, and (to the extent permitted by applicable law)
any overdue interest in respect of the Notes of such Series, at the
Default Rate, (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 any Note. 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.
Section 12.4. 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.
Section 13. Registration; Exchange; Substitution of Notes';.
Section 13.1. 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.
Section 13.2. 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 its 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) of an identical Series 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 and shall be
substantially in the form of the Note of such Series originally issued
hereunder or pursuant to any Supplement. 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 $500,000, 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 $500,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its
nominee), shall be deemed to have made the representation set forth in
Section 6.2, provided that such holder may (in reliance upon information
provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by such holder of any Note
will not constitute a non-exempt prohibited transaction under Section
406(a) of ERISA.
Section 13.3. 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 another holder of a Note
with a minimum net worth of at least $10,000,000, 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 an identical 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.
Section 14. Payments on Notes;.
Section 14.1. Place of Payment;. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and
payable on the Notes shall be made in Chicago, Illinois at the principal
office of Bank of America Illinois 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.
Section 14.2. 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, Make-Whole Amount, if any,
and interest by the method and at the address specified for such purpose
below your name in Schedule A hereto or Schedule A attached to any
Supplement, 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.
Section 15. Expenses, Etc;.
Section 15.1. Transaction Expenses;. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and
expenses (including reasonable attorneys' fees of a special counsel and,
if reasonably required, local or other counsel) incurred by you and each
Other Purchaser and each other 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
Material 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).
Section 15.2. 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, any
Supplement or the Notes, and the termination of this Agreement or any
Supplement.
Section 16. Survival of Representations and Warranties; Entire
Agreement';.
All representations and warranties contained herein or in any
Supplement shall survive the execution and delivery of this Agreement,
such Supplement and the Notes, the purchase or transfer by you or any
Additional Purchaser 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 Additional Purchaser 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 or any
Supplement shall be deemed representations and warranties of the Company
under this Agreement. Subject to the preceding sentence, this Agreement
(including every Supplement) and the Notes embody the entire agreement and
understanding between you, the Other Purchasers and the Additional
Purchasers and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
Section 17. Amendment and Waiver;.
Section 17.1. (a) Requirements;. This Agreement (including any
Supplement hereto) 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 holders of Notes holding more than 50% in aggregate principal
amount of the Notes of each Series affected thereby, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6
or 21 hereof, 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 of any Series 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
reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes of such Series, (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. For purposes of this
Section 17.1, any amendment to Section 11 which gives the holders of Notes
of any Series greater rights than the holders of Notes of any other Series
with respect to any Default or Event of Default shall require the consent
of more than 50% in aggregate principal amount of the Notes of each
Series.
(b) Supplements. Notwithstanding anything to the contrary contained
herein, the Company may enter into any Supplement providing for the
issuance of one or more Series of Additional Notes consistent with
Sections 2.2 and 4.11 hereof without obtaining the consent of any holder
of any other Series of Notes.
Section 17.2. 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 of 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, ratably to each
holder of Notes then outstanding even if such holder did not consent to
such waiver or amendment.
Section 17.3. 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.
Section 17.4. 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, any Restricted
Subsidiary or any of its Affiliates shall be deemed not to be outstanding.
Section 18. Notices;.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile 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 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.
Section 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 any holder of Notes at the time such
Notes were issued (except the Notes themselves), and (c) financial
statements, certificates and other information previously or hereafter
furnished to any holder of Notes, may be reproduced by such holder by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and such holder 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.
Section 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
Restricted 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
Restricted 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 Restricted 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, trustees, officers, 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 who agree 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) the National
Association of Insurance Commissioners or any similar organization, or 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.
Section 21. Substitution of Purchaser;.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase 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.
Section 22. Miscellaneous;.
Section 22.1. Successors and Assigns;. All covenants and other
agreements contained in this Agreement (including all covenants and other
agreements contained in any Supplement) 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.
Section 22.2. Payments Due on Non-Business Days;. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or Make-Whole Amount 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.
Section 22.3. 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.
Section 22.4. 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.
Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP, to the
extent applicable, except where such principles are inconsistent with the
express requirements of this Agreement.
Section 22.5. 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.
Section 22.6. Governing Law;. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be
governed by, the law of the State of Illinois 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 on the accompanying counterpart of this Agreement and return it
to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Signature;
Very truly yours,
The Marcus Corporation
By
Its President
The foregoing is hereby agreed
to as of the date thereof.
[Add Purchaser Signature Blocks]
<PAGE>
Information Relating to Purchasers
Principal Principal
Amount of Amount of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Massachusetts Mutual Life
Insurance Company $2,500,000 $2,500,000
1295 State Street
Springfield, Massachusetts 01111
Attention: Securities Investment Division
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1 or 7.51% Series A
Senior Notes, Tranche B, due October 15, 2011, PPN 56633# AB 9,
principal or interest" to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, New York 10081
(ABA #021000021)
for credit to: MassMutual IFM Non-Traditional Account No. 910-2509073
Re: Description of security, principal and interest split
with telephone advice of payment to the Securities Custody and
Collection Department of Massachusetts Mutual Life Insurance Company
at (413) 744-3878
(2) All notices and communications to be addressed as first provided
above, except notices with respect to payments, to be addressed
Attention: Securities Custody and Collection Department, F 381.
(3) Register Notes in the name of:
Massachusetts Mutual Life Insurance Company
(4) Taxpayer I.D. No. 04-1590850
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Massachusetts Mutual Life
Insurance Company $9,250,000 $9,250,000
1295 State Street
Springfield, Massachusetts 01111
Attention: Securities Investment Division
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1 or 7.51% Series A
Senior Notes, Tranche B, due October 15, 2011, PPN 56633# AB 9,
principal or interest" to:
Citibank, N.A.
111 Wall Street
New York, New York 10043
(ABA #021000089)
for credit to: MassMutual Long Term Pool Account No. 4067-3488
Re: Description of security, principal and interest split
with telephone advice of payment to the Securities Custody and
Collection Department of Massachusetts Mutual Life Insurance Company
at (413) 744-3878
(2) All notices and communications to be addressed as first provided
above, except notices with respect to payments, to be addressed
Attention: Securities Custody and Collection Department, F 381.
(3) Register Notes in the name of:
Massachusetts Mutual Life Insurance Company
(4) Taxpayer I.D. No. 04-1590850
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
CM Life Insurance Company
c/o Massachusetts Mutual Life
Insurance Company $750,000 $750,000
1295 State Street
Springfield, Massachusetts 01111
Attention: Securities Investment Division
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1 or 7.51% Series A
Senior Notes, Tranche B, due October 15, 2011, PPN 56633# AB 9,
principal or interest" to:
Citibank, N.A.
111 Wall Street
New York, New York 10043
(ABA #021000089)
For Segment 43-Universal Life
Account No. 4068-6561
Re: Description of security, principal and interest split
with telephone advice of payment to the Securities Custody and
Collection Department of Massachusetts Mutual Life Insurance Company
at (413) 744-3878
(2) All notices and communications to be addressed as first provided
above, except notices with respect to payments, to be addressed
Attention: Securities Custody and Collection Department, F 381.
(3) Register Notes in the name of:
CM Life Insurance Company
(4) Taxpayer I.D. No. 06-1041383
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Nationwide Life Insurance Company
One Nationwide Plaza (I-33-07) $10,000,000 $10,000,000
Columbus, Ohio 43215-2220
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1 or 7.51% Series A
Senior Notes, Tranche B, due October 15, 2011, PPN 56633# AB 9,
principal or interest") to:
The Bank of New York
(ABA #021-000-018)
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
PPN# _______________
Security Description: ___________________
(2) All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
Nationwide Life Insurance Company
c/o The Bank of New York
P. O. Box 19266
Attention: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (I-32-05)
Columbus, Ohio 43215-2220
(3) All other communications to be addressed as first provided above to:
Attention: Corporate Fixed-Income Securities
(4) Taxpayer I.D. Number: 31-4156830
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Connecticut General Life
Insurance Company $3,000,000 $-0-
CIG & Co. 3,000,000
c/o CIGNA Investments, Inc. 3,000,000
900 Cottage Grove Road 3,000,000
----------
Hartford, Connecticut 06152-2307 $12,000,000
Attention: Private Securities Division - S-307
Operations Group
Fax: 860-726-7203
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/
AC=9009001802
ABA #021000021
(2) All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
With a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 860-726-7203
(3) All other communications to be addressed as first provided above.
(4) The original note should be registered in the name of CIG & Co.
(5) Taxpayer I.D. Number: 13-3574027
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Life Insurance Company
of North America $3,000,000 $-0-
CIG & Co.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Attention: Private Securities Division - S-307
Operations Group
Fax: 860-726-7203
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/
AC=9009001802
ABA #021000021
(2) All notices of payment on or in respect of the Notes and written
confirmation of each such payment to:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
With a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
(3) All other communications to be addressed as first provided above.
(4) The original note should be registered in the name of CIG & Co.
(5) Taxpayer I.D. Number: 13-3574027
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Northern Life Insurance Company $5,000,000 $-0-
c/o Reliastar Investment Research, Inc.
100 Washington Square
Suite 800
Minneapolis, Minnesota 55401-2147
Ref: Theodore R. Hoxmeier
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
First National Bank N.A./Mpls
601 2nd Ave. S.
Acct. #1602-3237-6105
Bank ABA #091000022
Attn: Securities Accounting
Ref: Issuer, Cusip, Coupon & Maturity
(2) All notices of payments and written confirmations of such wire
transfers:
Reliastar Investment Research, Inc.
100 Washington Avenue South
Suite 800
Minneapolis, Minnesota 55401-2147
Ref: Theodore R. Hoxmeier
Phone: (612) 372-5254
Fax: (612) 372-5368
(3) All other communications to be addressed as first provided above in
(2).
(4) Taxpayer I.D. No. 41-1295933
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
ReliaStar Life Insurance Company $3,000,000 $-0-
c/o Reliastar Investment Research, Inc.
100 Washington Avenue South
Suite 800
Minneapolis, Minnesota 55401-2147
Ref: Theodore R. Hoxmeier
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
First National Bank N.A./Mpls
601 2nd Ave. S.
Acct. #1102-4001-4461
Bank ABA #091000022
Attn: Securities Accounting
Ref: Issuer, Cusip, Coupon & Maturity
(2) All notices of payments and written confirmations of such wire
transfers:
Reliastar Investment Research, Inc.
100 Washington Avenue South
Suite 800
Minneapolis, Minnesota 55401-2147
Ref: Theodore R. Hoxmeier
Phone: (612) 372-5254
Fax: (612) 372-5368
(3) All other communications to be addressed as first provided above in
(2).
(4) Taxpayer I.D. No. 41-0451140
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
ReliaStar Bankers Security Life
Insurance Company $2,000,000 $-0-
c/o Reliastar Investment Research, Inc.
100 Washington Avenue South
Suite 800
Minneapolis, Minnesota 55401-2121
Ref: Theodore R. Hoxmeier
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
Chase Manhattan
New York, NY
A/C #544755102
F/C #1960 Dept. 571 NonStandard Securities
Bank ABA #021000021
Ref: Issue Name, PPN and P&I Breakdown
(2) All notices of payments and written confirmations of such wire
transfers:
Reliastar Investment Research, Inc.
100 Washington Avenue South
Suite 800
Minneapolis, Minnesota 55401-2147
Ref: Theodore R. Hoxmeier
Phone: (612) 372-5254
Fax: (612) 372-5368
(3) All other communications to be addressed as first provided above in
(2).
(4) Register Note in Name of:
SIGLER & CO.
(5) Taxpayer I.D. No. 53-0242530
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Aid Association for Lutherans $10,000,000 $-0-
432l North Ballard Road
Appleton, Wisconsin 54919
Attention: Investment Department
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1, principal or
interest") to:
Citibank, NYC/CUST.
ABA #021-000-089
DDA #36112805
Attn: John Colavito
Ref Account #846647
Aid Association for Lutherans Custody Account
security description
CUSIP (if available)
maturity date
payable date
principal and interest breakdown
interest rate if variable rate
with sufficient information to identify the source and application of
such funds.
(2) All notices on or in respect to the Notes and written confirmation of
each such payment to be addressed as first provided above and to:
Income Collection and Disbursement
Ref Account #846647
Aid Association for Lutherans Custody Account
Citicorp Services Inc.
1410 N. Westshore Blvd.
4th Floor
Tampa, FL 33607
(3) All other communications to be addressed as first provided above.
(4) Taxpayer I.D. No. 39-0123480
<PAGE>
Principal Amount Principal Amount
of of
Name and Address Tranche A Notes Tranche B Notes
of Purchaser to Be Purchased to Be Purchased
Security First Life Insurance Company $2,500,000 $2,500,000
c/o London Life Insurance Company
255 Dufferin Avenue
London, Ontario
N6A 4K1
Attention: Manager U.S. Fixed Income
(Private Placements)
Securities Department
(1) All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds (identifying
each payment as "The Marcus Corporation, 7.41% Series A Senior Notes
Tranche A, due October 15, 2008, PPN 56633# AA 1 or 7.51% Series A
Senior Notes, Tranche B, due October 15, 2011, PPN 56633# AB 9,
principal or interest") to:
Bank of New York
1 Wall Street
New York, New York 10286
F/A/O Security First Group Corporate Bond
Account
Account #328175
ABA #021000018
(2) All notices of payments and written confirmations of such wire
transfers as first provided above.
(3) All other communications to be addressed as described in (2) above.
(4) Register Note in Name of:
Security First Life Insurance Company.
(5) Taxpayer I.D. No. 540696644
<PAGE>
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:
"Additional Notes" is defined in Section 2.2.
"Additional Purchasers" means purchasers of Additional Notes.
"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 other Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of voting or
equity interests of such first Person or any other Person of which such
first Person 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. For all purposes of this Agreement, Restricted
Subsidiaries shall not be deemed to be Affiliates of the Company or any
other Restricted Subsidiary.
"Business Day" means (a) for the purposes of Section 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New
York City are required or authorized to be closed, and (b) for the
purposes of any other provision of this Agreement, any day other than a
Saturday, a Sunday or a day on which commercial banks in Chicago, Illinois
or Milwaukee, Wisconsin 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.
"Capital Lease Obligation" means, with respect to any Person and a Capital
Lease, the amount of the obligation of such Person, as the lessee under
the Capital Lease, which would appear as a liability on a balance sheet of
such Person in accordance with GAAP.
"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 The Marcus Corporation, a Wisconsin corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Debt" means, as of the date of any determination thereof,
all Debt of the Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, as of the date of any determination
thereof, Stockholders' Equity less the total amount of all Restricted
Investments in excess of 20% of Stockholders' Equity as of such date of
determination.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Company and its Restricted Subsidiaries for such
period (taken as a cumulative whole), as determined in accordance with
GAAP, after eliminating all offsetting debits and credits between the
Company and its Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial
statements of the Company and its Restricted Subsidiaries in accordance
with GAAP.
"Consolidated Operating Cash Flow" means, in respect of any period, the
sum of (a) Consolidated Net Income for such period, and (b) the amount of
all Net Interest Charges, Operating Lease Rentals, depreciation,
amortization, income taxes, deferred items and other non-cash expenses of
the Company and its Restricted Subsidiaries for such period, but only to
the extent deducted in the determination of Consolidated Net Income for
such period.
"Consolidated Operating Cash Flow Ratio" means, with respect to any
period, the ratio of Consolidated Operating Cash Flow to Fixed Charges for
such period.
"Consolidated Total Assets" means, as of the date of any determination
thereof, the total amount of all assets of the Company and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Capitalization" means, as of the date of any
determination thereof, the sum of (i) Consolidated Debt, plus (ii)
Consolidated Net Worth.
"Debt" means, with respect to any Person, 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 but including, without limitation, all liabilities created or
arising under any conditional sale or other title retention agreement with
respect to any such property);
(c)its Capital Lease Obligations; and
(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).
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (d) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP. Unless otherwise
specifically provided for herein, Debt of any Person shall not include any
Guaranty by such Person of obligations of any other Person.
"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.
"Default Rate" means that rate of interest that is the greater of (i) 2%
per annum above the rate of interest stated in clause (a) of the first
paragraph of the Notes or (ii) 2% per annum over the rate of interest
publicly announced by Bank of America Illinois in Chicago, Illinois as its
"base" or "prime" rate.
"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.
"Excluded Sale and Leaseback Transaction" shall mean any sale or transfer
of property owned by the Company or any Restricted Subsidiary to any
Person within 180 days following the acquisition or construction of such
property by the Company or any Restricted Subsidiary if the Company or a
Restricted Subsidiary shall concurrently with such sale or transfer lease
such property, as lessee.
"Fixed Charges" means, with respect to any period, the sum of (i) all
Operating Lease Rentals payable during such period by the Company and its
Restricted Subsidiaries, plus (ii) Net Interest Charges during such period
of the Company and its Restricted Subsidiaries.
"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 Restricted Subsidiary
conducts all or any part of its business, or which asserts jurisdiction
over any properties of the Company or any Restricted 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
polychlorinated 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.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note or Notes holding more than $2,000,000 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 Charges" means, with respect to any period, the sum (without
duplication) of (a) all interest in respect of all Debt of the Company and
its Restricted Subsidiaries (including the interest component of rentals
on Capital Leases) deducted in determining Consolidated Net Income for
such period, together with all interest capitalized or deferred during
such period and not deducted in determining Consolidated Net Income for
such period, plus (b) all debt discount and expense amortized or required
to be amortized in the determination of Consolidated Net Income for such
period.
"Investments" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or other obligations
or securities or by loan, advance, capital contribution or otherwise;
provided, however, that "Investments" shall not mean or include routine
investments in property or assets to be used or consumed in the ordinary
course of business.
"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).
"Make-Whole Amount" shall have the meaning (i) set forth in Section 8.6
with respect to the Series A Notes, and (ii) set forth in the applicable
Supplement with respect to any other Series of Notes.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the
Company and its Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties
of the Company and its Restricted Subsidiaries, taken as a whole, or (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.
"Material Subsidiary" means any Restricted Subsidiary which, either
individually or together with one or more Restricted Subsidiaries, (i)
accounts for more than 5% of Consolidated Total Assets, or (ii) accounts
for more than 5% of Consolidated gross revenues of the Company and its
Restricted Subsidiaries.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Interest Charges" means, with respect to any period, the difference
between (but not below zero) (i) all Interest Charges during such period
of the Company and its Restricted Subsidiaries, minus (ii) all interest
income during such period of the Company and its Restricted Subsidiaries.
"Notes" is defined in Section 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.
"Operating Lease Rentals" means, with respect to any period, the sum of
the minimum amount of rental and other obligations required to be paid
during such period by the Company or any Restricted Subsidiary 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) (a) which are on
account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, or (b) which are based on profits, revenues or
sales realized by the lessee from the leased property or otherwise based
on the performance of the lessee.
"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.
"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.
"Priority Debt" means (without duplication), as of the date of any
determination thereof, (i) all Debt of Restricted Subsidiaries (other than
Debt owing to the Company or another Restricted Subsidiary), (ii) any
Guaranty of Debt of the Company by any Material Subsidiary and (iii) all
Debt secured by Liens permitted by subparagraph (l) of Section 10.5.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14 issued
by the United States Department of Labor.
"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.
"Restricted Investments" means all Investments, other than the following:
(a)Investments by the Company and its Restricted Subsidiaries in and to
Restricted Subsidiaries, including any Investment in a corporation which,
after giving effect to such Investment, will become a Restricted
Subsidiary;
(b)Investments in commercial paper maturing in 270 days or less from the
date of issuance which, at the time of acquisition by the Company or any
Restricted Subsidiary, are accorded one of the highest two ratings by
Standard & Poor's Rating Group, a division of McGraw-Hill, Inc. or by
Moody's Investors Services, Inc. or other nationally recognized credit
rating agency of similar standing;
(c)Investments in direct obligations of the United States of America or
any agency or instrumentality of the United States of America, the payment
or guarantee of which constitutes a full faith and credit obligation of
the United States of America, in either case, maturing within one year
from the date of acquisition thereof;
(d)Investments in certificates of deposit or bankers acceptances maturing
within one year from the date of issuance thereof, issued by Bank of
America or any other bank or trust company organized under the laws of the
United States or any state thereof, whose long-term certificates of
deposit are, at the time of acquisition thereof by the Company or a
Restricted Subsidiary, accorded one of the highest two ratings by Standard
& Poor's Rating Group, a division of McGraw-Hill, Inc. or by Moody's
Investors Services, Inc. or other nationally recognized credit rating
agency of similar standing;
(e)Investments in tax-exempt obligations maturing within one year from the
date of issuance which, at the time of acquisition by the Company or any
Restricted Subsidiary, are accorded one of the highest two ratings by
Standard & Poor's Rating Group, a division of McGraw-Hill, Inc. or by
Moody's Investors Services, Inc. or other nationally recognized credit
rating agency of similar standing;
(f)Investments resulting from receivables arising from the sale of goods
and services in the ordinary course of business of the Company and its
Restricted Subsidiaries;
(g)Investments by the Company and its Restricted Subsidiaries in property,
plant and equipment of the Company and its Restricted Subsidiaries to be
used in the ordinary course of business;
(h)Investments in money market instrument programs which are classified as
current assets of the Company or any Restricted Subsidiary in accordance
with GAAP;
(i)Investments in repurchase agreements; and
(j)Investments of the Company and its Restricted Subsidiaries existing as
of the date of Closing and described on Schedule 5.4.
In valuing any Investments for the purpose of applying the limitations set
forth in this Agreement, such Investments shall be taken at the original
cost thereof, without allowance for any subsequent write-offs or
appreciation or depreciation therein, but less any amount repaid or
recovered on account of capital or principal.
"Restricted Subsidiary" means any Subsidiary which (i) at least a majority
of the voting securities of such Subsidiary are owned by the Company
and/or one or more Wholly-Owned Restricted Subsidiaries, (ii) is organized
under the laws of the United States or any State thereof, (iii) conducts
substantially all of its business and has substantially all of its assets
within the United States, Canada or Mexico, and (iv) the Company has
designated as a Restricted Subsidiary on Schedule 5.4 or by written notice
given to the holders of all Notes in accordance with Section 10.8.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Debt" means, as of the date of any determination thereof, all
Consolidated Debt, other than Subordinated Debt.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Series A Notes" is defined in Section 1.
"Series B Notes" is defined in Section 1.
"Stockholders' Equity" means, as of the date of any determination thereof,
the total amount of shareholders' equity of the Company and its Restricted
Subsidiaries (after eliminating all minority interests, if any),
determined on a consolidated basis in accordance with GAAP.
"Subordinated Debt" means, as of the date of any determination thereof,
all unsecured Debt of the Company which shall contain or have applicable
thereto subordination provisions providing for the subordination thereof
to other Debt of the Company (including, without limitation, the Notes).
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns
sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and
any partnership or joint venture if more than a 50% interest in the
profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless
such partnership can and does ordinarily take major business actions
without the prior approval of such Person or 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.
"Supplement" is defined in Section 2.2.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
"Wholly-Owned Restricted Subsidiary" means, at any time, any Restricted
Subsidiary one hundred percent (100%) of 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 Restricted Subsidiaries at such time.
<PAGE>
Subsidiaries, Affiliates, Directors and
Senior Officers, and Investments
1. Restricted Subsidiaries
The Company owns 100% of the stock of the following corporations:
Name State of Incorporation
Marcus Theatres Corporation Wisconsin
Marcus Restaurants, Inc. Wisconsin
B & G Realty, Inc. Wisconsin
First American Finance Corporation Wisconsin
Marc Plaza Corporation Wisconsin
Pfister Corporation Wisconsin
Marcus Geneva, Inc. Wisconsin
Marcus Hotels, Inc. Wisconsin
Budgetel Inns, Inc. Wisconsin
Marcus Theatres Corporation owns 100% of the stock of the following
corporations:
Name State of Incorporation
Appleton Theatres Corporation Wisconsin
Centre Theatres Corporation Wisconsin
LaCrosse Amusement Company Wisconsin
Lake-Vue Drive-In Corp. Wisconsin
Marcus Cinemas, Inc. Wisconsin
Marcus Productions, Inc. Wisconsin
M&S Amusement, Inc. Wisconsin
Pilgrim Theatre Corporation Wisconsin
Southtown Corporation Wisconsin
Starlight-24 Corporation Wisconsin
Stephen Amusement Corporation Wisconsin
Tower 41-Corporation Wisconsin
Vending Corporation Wisconsin
41-Bowl, Inc. Wisconsin
Marcus Amusement Co., Inc. Wisconsin
Budgetel Inns, Inc. owns 100% of the stock of the following
corporations:
Name State of Incorporation
Budgetel Partners, Inc. Wisconsin
Guest House Inn-Appleton, Inc. Wisconsin
Guest House Inn of Manitowoc, Inc. Wisconsin
Marc's Budgetel of Nebraska, Inc. Nebraska
Budgetel Franchises International, Inc. Wisconsin
Woodfield Refreshments of Colorado, Inc. Colorado
Marcus Restaurants, Inc. owns 100% of the stock of the following
corporations, except it owns 50% of 642, Inc.:
Name State of Incorporation
Marc's Carryout Corporation Wisconsin
Tops, Inc. Illinois
B&G Leasing Corporation Wisconsin
Captains-Juneau, Inc. Wisconsin
Captains-Mayfair, Inc. Wisconsin
Captains-Wausau, Inc. Wisconsin
Captains-Kenosha, Inc. Wisconsin
Colony Inns Southgate Corporation Wisconsin
Marc's Steak House, Inc. Wisconsin
642, Inc. Wisconsin
Red Garter-Manitowoc, Inc. Wisconsin
Captains-Appleton, Inc. Wisconsin
Specialty Products Corporation of Wisconsin Wisconsin
Glendale Refreshments, Inc. Wisconsin
Grand Avenue Refreshments, Inc. Wisconsin
Marcus Restaurants, Inc. has an option to purchase the remaining 50%
of the stock of 642, Inc. for $5.
Colony Inns Southgate Corporation owns 80% of the stock of Colony
Inns Refreshments, Inc., a Wisconsin corporation, and has an option to
purchase the remaining 20% for $5.
Marcus Hotels, Inc. owns 100% of the stock of Marcus Northstar, Inc.,
a Minnesota corporation.
2. Unrestricted Subsidiaries
None
3. Affiliates of the Company
Entity Name Property Location
Arlington Budgetel Partnership Arlington, TX
Huntsville University Partnership Huntsville, AL
Nashville Budgetel Partnership Nashville, TN
Montgomery Budgetel Partnership Montgomery, AL
Fort Lauderdale Budgetel Partnership Ft. Lauderdale, FL
Milwaukee South Budgetel Partnership Oak Creek, WI
Orlando Budgetel Inn Partnership Orlando, FL
Albuquerque Budgetel Inn Partnership Albuquerque, NM
Cleveland Budgetel Inn Partnership Cleveland Airport, OH
El Paso Budgetel Inn Partnership El Paso, TX
Columbus Budgetel Inn Partnership Columbus, OH
Springdale Budgetel Inn Partnership Springdale, AR
Marc's/Forest City Partnership Mayfield Heights, OH
LMC Associates - Rockside Partnership Independence, OH
Willowbrook Motel Limited Partnership Willowbrook, IL
BN/MC Associates - Cook Partnership Glenview, IL
Hoffman Northwest Limited Partnership Hoffman Estates, IL
Marc/Antell Partnership Roseville, MI
Marcus-Guastello Partnership Warren, MI
Beck/Marcus Associates-Miami Airport Miami Springs, FL
Partnership
Cutler Ridge Associates Partnership Cutler Ridge, FL
4. Directors and Senior Officers of the Company
Directors
George R. Slater
Retired Chairman and Chief Executive Officer, Banc One Wisconsin
Corporation
Lee Sherman Dreyfus
President, Lee Sherman Dreyfus, Inc. and former Governor of the State of
Wisconsin
Daniel F. McKeithan, Jr.
President, Tamarack Petroleum Company, Inc.
Diane Marcus Gershowitz
Real estate management and investments
Timothy E. Hoeksema
President, Midwest Express Airlines, Inc.
Allen H. (Bud) Selig
President and Chief Executive Officer, Milwaukee Brewers Baseball Club
Stephen H. Marcus
Chairman of the Board, President and Chief Executive Officer of the
Company
Bruce J. Olson
Group Vice President of the Company
Senior Officers
Stephen H. Marcus
Chairman of the Board, President and Chief Executive Officer of the
Company
Bruce J. Olson
Group Vice President of the Company
Lee A. Berthelsen
President and Chief Operating Officer, Marcus Hotels and Resorts
H. Fred Delmenhorst
Vice President-Human Resources
David T. Lucas
President, Budgetel Inns
Thomas F. Kissinger
General Counsel and Secretary
Douglas A. Neis
Chief Financial Officer, Treasurer and Controller
5. Investments
# of Shares or
Units of Investment Amount
Grand Avenue Corporation 150 150,000.00
North Milwaukee State Bank Capital Debentures 1,000 10,000.00
Exec Motel 100 79.66
Venture Capital Fund 43,847.94
Future Value Venture 40,005 45,000.00
Milwaukee Innovation 150 15,000.00
Wisconsin Community Capital 30 15,000.00
Time Inc. 1 103.13
Warner Communications Inc. 1 45.88
Steeltech 160 0.00
Leisure Concepts, Inc. 1 20.38
United Artists Communications 1 38.50
Cineplex Odeon Corp. 1 30.00
Orion Pictures Corp. 1 30.13
MGM/UA Communications Co. 1 22.00
Gulf & Western Inc. 1 90.13
Harcourt General Corp. (General Cinema) 1 52.50
Walt Disney Corp. 1 76.75
Coca-Cola Company 2 57.00
Cannon Group, Inc. 1 20.13
Tri-Star Pictures Inc. 1 26.63
Vestron, Inc. 1 21.50
DeLaurentis Entertainment 1 26.25
New Line Cinema Corp. 1 22.53
New World Pictures LTD 1 28.38
AMC Entertainment Inc. 1 25.75
Gander Mountain, Inc. 1,894 12,263.65
Frisch's Restaurants 5 195.63
Carmike Cinema 1 11.75
Rally's 1 25.50
Morgans Foods 1 1.88
JB's Restaurants 1 8.00
Apple South Inc. 1 29.00
Brinker International Inc. 1 59.13
Regal Cinemas, Inc. 1 11.84
Cinemaster Luxury Theaters Inc. 1 6.13
Sholodge 78,000 1,033,500.00
Total
$1,325,777.68
Financial Statements
The audited consolidated balance sheets of the Company and its
Subsidiaries as of the fiscal years ended in May in each of the years 1992
to 1996, both inclusive, and the consolidated statements of income and
shareholders' equity and cash flows for the fiscal years ended on said
dates and the Securities and Exchange Commission Form 10-Q for the fiscal
quarter ended August 22, 1996 and Securities and Exchange Commission Form
10-K for the fiscal year ended May 30, 1996.
Patents, etc.
None
Existing Debt
Bank Balance Interest
Rate
B&G Realty
Management Enterprises 98,065 9.0000%
Bankers Trust 2,000,000 TENR + .25 3.7500%
PNC Bank 1,554,189 8.7700%
Firstar 2,300,000 6.3091%
First Bank-Milwaukee 2,016,345 LIBOR + 1.7 7.2300%
Marcus Corporation
NBD 13,500,000 5.8300%
Bank One 20,000,000 LIBOR + 1 6.6100%
Bank One (Line of Credit) 3,000,000 LIBOR + 1 6.4200%
1,700,000 LIBOR + 1 6.4400%
1,500,000 LIBOR + 1 6.6000%
1,300,000 LIBOR + 1 6.5900%
2,500,000 LIBOR + 1 8.2500%
Bank of America (Line of Credit) 5,000,000 6.1875%
2,500,000 6.2500%
5,000,000 6.1875%
7,000,000 6.3750%
5,500,000 6.3125%
5,000,000 6.4688%
Sun Trust 23,437,500 LIBOR + .75 6.2500%
NML 25,082,094 10.2200%
Theatre Div
First Bank Milwaukee 225,000 8.2500%
Hotel Div
First Financial 406,324 7.6300%
Budgetel Div
Bank One 1,312,500 LIBOR + 1.5 7.3750%
First Bank-Milwaukee 1,560,280 PRIME - .25 8.0000%
1,749,152 PRIME + .25 8.5000%
2,326,880 PRIME + .25 8.5000%
Corus Bank-Chicago 1,548,580 7.6200%
-----------
Total Existing Debt $139,116,909
============
Existing Liens
Bank Balance Property
B&G Realty
Management Enterprises 98,065 Military Big Boy, Green Bay,
WI
Bankers Trust 2,000,000 Canton, MI
PNC Bank 1,554,189 Savannah, GA
Firstar 2,300,000 West Point Big Boy/Budgetel,
Brookfield, WI
First Bank-Milwaukee 2,016,345 West Point Theatre/KFC,
Brookfield, WI
Theatre Div - Marcus
Corporation
First Bank Milwaukee 225,000 Skyway, Milwaukee, WI
Hotel Div - Marcus
Corporation
First Financial 406,324 Milwaukee Hilton
Budgetel Div - Marcus
Corporation
Bank One 1,312,500 Montgomery, AL
First Bank-Milwaukee 1,560,280 Milwaukee South (Oak Creek),
1,749,152 WI
2,326,880 Albuquerque, NM
Cleveland-Airport, OH
Corus Bank-Chicago 1,548,580 Roseville, MI
-------------
Total Debt Secured by Liens $17,097,315
===========
Note: The Debt listed above is secured by all real and personal property
situated at the location set forth opposite such Debt.
[Form of Tranche A Note]
The Marcus Corporation
7.41% Series A Senior Note, Tranche A, due October 15, 2008
No. [_________][Date]
$[____________]PPN 56633# AA 1
For Value Received, the undersigned, The Marcus Corporation (herein called
the "Company"), a corporation organized and existing under the laws of the
State of Wisconsin, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars on
October 15, 2008, with interest (computed on the basis of a 360-day year
of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
7.41% per annum from the date hereof, payable semiannually, on the
fifteenth day of April and October in each year, commencing on the first
of such dates after the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below),
payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to
the greater of (i) 9.41% or (ii) 2% over the rate of interest publicly
announced by Bank of America Illinois from time to time in Chicago,
Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States
of America at Bank of America Illinois, in Chicago, Illinois, or at such
other place 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 7.41% Series A Senior Notes, Tranche A
(the "Tranche A Notes") issued or to be issued together with the 7.51%
Series A Senior Notes, Tranche B (the "Tranche B Notes" and together with
the Tranche A Notes, the "Series A Notes") pursuant to separate Note
Purchase Agreements, dated as of October 25, 1996 (as from time to time
amended and supplemented, the "Note Purchase Agreements"), between the
Company and the respective Purchasers named therein. This Note and the
holder hereof are entitled equally and ratably with the holders of all
other Notes of all Series from time to time outstanding under the Note
Purchase Agreements to all the benefits provided for thereby or referred
to therein. Each holder of this Note will be deemed, by its acceptance
hereof, to have made the representation set forth in Section 6.2 of the
Note Purchase Agreements, provided that such holder may (in reliance upon
information provided by the Company, which shall not be unreasonably
withheld) make a representation to the effect that the purchase by such
holder of any Note will not constitute a non-exempt prohibited transaction
under Section 406(a) of ERISA.
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 Tranche A Note for a like principal amount
will be issued to, and registered in the name of, the transferee. 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.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreements. This Note is
also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
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 (including any
applicable Make-Whole Amount) 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 parties shall be governed by, the law of the State of
Illinois 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.
The Marcus Corporation
By
Its President
<PAGE>
[Form of Tranche B Note]
The Marcus Corporation
7.51% Series A Senior Note, Tranche B, due October 15, 2011
No. [_________][Date]
$[____________]PPN 56633# AB 9
For Value Received, the undersigned, The Marcus Corporation (herein called
the "Company"), a corporation organized and existing under the laws of the
State of Wisconsin, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars on
October 15, 2011, with interest (computed on the basis of a 360-day year
of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
7.51% per annum from the date hereof, payable semiannually, on the
fifteenth day of April and October in each year, commencing on the first
of such dates after the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below),
payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to
the greater of (i) 9.51% or (ii) 2% over the rate of interest publicly
announced by Bank of America Illinois from time to time in Chicago,
Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States
of America at Bank of America Illinois, in Chicago, Illinois, or at such
other place 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 7.51% Series A Senior Notes, Tranche B
(the "Tranche B Notes") issued or to be issued together with the 7.41%
Series A Senior Notes, Tranche A (the "Tranche A Notes" and together with
the Tranche B Notes, the "Series A Notes") pursuant to separate Note
Purchase Agreements, dated as of October 25, 1996 (as from time to time
amended and supplemented, the "Note Purchase Agreements"), between the
Company and the respective Purchasers named therein. This Note and the
holder hereof are entitled equally and ratably with the holders of all
other Notes of all Series from time to time outstanding under the Note
Purchase Agreements to all the benefits provided for thereby or referred
to therein. Each holder of this Note will be deemed, by its acceptance
hereof, to have made the representation set forth in Section 6.2 of the
Note Purchase Agreements, provided that such holder may (in reliance upon
information provided by the Company, which shall not be unreasonably
withheld) make a representation to the effect that the purchase by such
holder of any Note will not constitute a non-exempt prohibited transaction
under Section 406(a) of ERISA.
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 Tranche B Note for a like principal amount
will be issued to, and registered in the name of, the transferee. 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.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreements. This Note is
also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
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 (including any
applicable Make-Whole Amount) 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 parties shall be governed by, the law of the State of
Illinois 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.
The Marcus Corporation
By
Its President
<PAGE>
Form of Opinion of Special Counsel
to the Company
The closing opinion of Robin J. Irwin, Esq., counsel to the Company, which
is called for by Section 4.4 of the Note Purchase Agreements, shall be
dated the date of Closing and addressed to the Purchasers, shall be
satisfactory in scope and form to each Purchaser and shall be to the
effect that:
1.The Company is a corporation, duly incorporated, validly existing and in
good standing under the laws of the Wisconsin, has the corporate power and
the corporate authority to execute and perform the Note Purchase
Agreements and to issue the Notes and has the full corporate power and the
corporate authority to conduct the activities in which it is now engaged
and is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction in which the character of the properties
owned or leased by it or the nature of the business transacted by it makes
such licensing or qualification necessary except in jurisdictions where
the failure to be so qualified or licensed would not have a material
adverse affect on the business of the Company.
2.Each Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly licensed or qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or the nature
of the business transacted by it makes such licensing or qualification
necessary except in jurisdictions where the failure to be so qualified or
licensed would not have a material adverse affect on the business of such
Subsidiary, and all of the issued and outstanding shares of capital stock
of each such Subsidiary have been duly issued, are fully paid and
non-assessable and are owned by the Company, by one or more Subsidiaries,
or by the Company and one or more Subsidiaries.
3.Each Note Purchase Agreement has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a proceeding in equity or at law).
4.The Notes have been duly authorized by all necessary corporate action on
the part of the Company, have been duly executed and delivered by the
Company and constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
5.No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, Federal
or state, is necessary in connection with the execution and delivery of
the Note Purchase Agreements or the Notes.
6.The issuance and sale of the Notes and the execution, delivery and
performance by the Company of the Note Purchase Agreements do not conflict
with or result in any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any Lien upon any
of the property of the Company pursuant to the provisions of the Articles
of Incorporation or By-laws of the Company or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company may be bound.
7.The issuance, sale and delivery of the Notes under the circumstances
contemplated by the Note Purchase Agreements do not, under existing law,
require the registration of the Notes under the Securities Act of 1933, as
amended, or the qualification of an indenture under the Trust Indenture
Act of 1939, as amended.
8.Neither the issuance of the Notes nor the application of the proceeds of
the sale of the Notes will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934, as amended, or any regulation
issued pursuant thereto, including, without limitation, Regulation G, T or
X of the Board of Governors of the Federal Reserve System.
9.There are no actions, suits or proceedings pending or, to the knowledge
of such counsel after due inquiry, threatened against or affecting the
Company or any Subsidiary in any court or before any governmental
authority or arbitration board or tribunal which, if adversely determined,
would have a materially adverse effect on the properties, business,
prospects, profits or condition, (financial or otherwise) of the Company
and its Restricted Subsidiaries or the ability of the Company to perform
its obligations under the Note Purchase Agreements and the Notes or on the
legality, validity or enforceability of the Company's obligations under
the Note Purchase Agreements or the Notes. To the knowledge of such
counsel, neither the Company nor any Subsidiary is in default with respect
to any court or governmental authority, or arbitration board or tribunal.
10.The Company is not an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act
of 1940, as amended.
The opinion of Robin J. Irwin, Esq. shall cover such other matters
relating to the sale of the Notes as each Purchaser may reasonably
request. With respect to matters of fact on which such opinion is based,
such counsel shall be entitled to rely on appropriate certificates of
public officials and other officers of the Company.
<PAGE>
Form of Opinion of Special Counsel
to the Purchasers
The closing opinion of Chapman and Cutler, special counsel to the
Purchasers, called for by Section 4.4 of the Note Purchase Agreements,
shall be dated the date of Closing and addressed to each Purchaser, shall
be satisfactory in form and substance to each Purchaser and shall be to
the effect that:
1.The Company is a corporation, validly existing and in good standing
under the laws of the State of Wisconsin and has the corporate power and
the corporate authority to execute and deliver the Note Purchase
Agreements and to issue the Notes.
2.Each Note Purchase Agreement has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a proceeding in equity or at law).
3.The Notes have been duly authorized by all necessary corporate action on
the part of the Company, and the Notes being delivered on the date hereof
have been duly executed and delivered by the Company and constitute the
legal, valid and binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
4.The issuance, sale and delivery of the Notes under the circumstances
contemplated by the Note Purchase Agreements do not, under existing law,
require the registration of the Notes under the Securities Act of 1933, as
amended, or the qualification of an indenture under the Trust Indenture
Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of
Robin J. Irwin, Esq., counsel to the Company, is satisfactory in scope and
form to Chapman and Cutler and that, in their opinion, the Purchasers are
justified in relying thereon.
With respect to matters of fact upon which such opinion is based, Chapman
and Cutler may rely on appropriate certificates of public officials and
officers of the Company and upon representations of the Company and the
Purchasers delivered in connection with the issuance and sale of the
Notes.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Articles of Incorporation certified by, and a
certificate of good standing of the Company from, the Secretary of State
of the State of Wisconsin, the By-laws of the Company and the general
business corporation law of the State of Wisconsin. The opinion of
Chapman and Cutler is limited to the laws of the State of Illinois, the
general business corporation law of the State of Wisconsin and the Federal
laws of the United States.
The Marcus Corporation
Supplement to Note Purchase Agreement
Dated as of ______________________
Re: $____________ _____% Series __ Senior Notes
Due _____________________
Supplement to Note Purchase Agreement
Dated as of
____________________, 19__
To the Purchaser named in
Schedule A hereto which is
a signatory of this Agreement
Ladies and Gentlemen:
This [Number] Supplement to Note Purchase Agreement (the "Supplement") is
between The Marcus Corporation (the "Company") whose address is 250 East
Wisconsin Avenue, Suite 1700, Milwaukee, Wisconsin 53202 and the
institutional investors named on Schedule A attached hereto (the
"Purchasers").
Reference is hereby made to that certain Note Purchase Agreement dated as
of October __, 1996 (the "Note Agreement") between the Company and the
purchasers listed on Schedule A thereto. All capitalized terms not
otherwise defined herein shall have the same meaning as specified in the
Note Agreement. Reference is further made to Section 4.11 thereof which
requires that, prior to the delivery of any Additional Notes, the Company
and each Additional Purchaser shall execute and deliver a Supplement.
The Company hereby agrees with you as follows:
1.The Company has authorized the issue and sale of $__________ aggregate
principal amount of its _____% Series ___ Senior Notes due _________, ____
(the "Series ___ Notes"). The Series ___ Notes, together with the Series
A Notes initially issued pursuant to the Note Agreement and each Series of
Additional Notes which may from time to time be issued pursuant to the
provisions of Section 2.2 of the Note Agreement, are collectively referred
to as the "Notes" (such term shall also include any such notes issued in
substitution therefor pursuant to Section 13 of the Note Agreement). The
Series ___ Notes shall be substantially in the form set out in Exhibit 1
hereto with such changes therefrom, if any, as may be approved by you and
the Company.
2.Subject to the terms and conditions hereof and as set forth in the Note
Agreement and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to you, and
you agree to purchase from the Company, Series __ Notes in the principal
amount set forth opposite your name on Schedule A hereto at a price of
100% of the principal amount thereof on the closing date hereafter
mentioned.
3.Delivery of the $__________ in aggregate principal amount of the Series
__ Notes will be made at the offices of _________________________,
_______________, _________, against payment therefor in Federal Reserve or
other funds current and immediately available at the principal office of
[Company Bank] in the amount of the purchase price at 11:00 A.M., [Bank
City] time, on __________, _____ or such later date (not later than _____)
as shall mutually be agreed upon by the Company and the Purchasers of the
Series ____ Notes (the "Closing").
4.[Here insert prepayment provisions (including any applicable premium
upon default and acceleration), closing conditions and representations and
warranties applicable to Series ___ Notes].
5.The Purchaser represents and warrants that the representations and
warranties set forth in Section 6 of the Note Agreement are true and
correct on the date hereof with respect to the Series __ Notes.
6.The Company and you agree to be bound by and comply with the terms and
provisions of the Note Agreement as if you were an original signatory to
the Note Agreement.
The execution hereof shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this agreement may be executed in
any number of counterparts, each executed counterpart constituting an
original but all together only one agreement.
The Marcus Corporation
By
Its
Accepted as of __________, _____
[Variation]
By
Its
<PAGE>
Information Relating to Purchasers
Principal
Name and Address of Purchaser Amount of
Series __ Notes
to Be Purchased
[Name of Purchaser] $
(1) All payments by wire transfer of
immediately available funds to:
with sufficient information to identify
the source and application of such funds.
(2) All notices of payments and written
confirmations of such wire
transfers:
(3) All other communications:
<PAGE>
[Form of Series __ Note]
The Marcus Corporation
___% Series __ Senior Note due ______________
No. [_________][Date]
$[____________]PPN [____________]
For Value Received, the undersigned, The Marcus Corporation (herein called
the "Company"), a corporation organized and existing under the laws of the
State of Wisconsin, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars on
_______________, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of
____% per annum from the date hereof, payable semiannually, on the first
day of ______ and ______ in each year, commencing on the first of such
dates after the date hereof, until the principal hereof shall have become
due and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note Purchase Agreements referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) [coupon + 2%]% or (ii) 2% over the rate of interest
publicly announced by Bank of America Illinois from time to time in Bank
of America Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States
of America at Bank of America Illinois, in Chicago, Illinois, or at such
other place 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 ___ % Series __ Senior Notes (the "Series
__ Notes") issued pursuant to a supplement to the separate Note Purchase
Agreements dated as of October __, 1996 (as from time to time amended and
supplemented, the "Note Purchase Agreements"), between the Company and the
respective Purchasers named therein. This Note and the holder hereof are
entitled equally and ratably with the holders of all other Notes of all
Series from time to time outstanding under the Note Purchase Agreements to
all the benefits provided for thereby or referred to therein. Each holder
of this Note will be deemed, by its acceptance hereof, to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements,
provided that such holder may (in reliance upon information provided by
the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by such holder of any Note
will not constitute a non-exempt prohibited transaction under Section
406(a) of ERISA.
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 Series __ Note for a like principal amount
will be issued to, and registered in the name of, the transferee. 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.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreements. This Note is
also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
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 (including any
applicable Make-Whole Amount) 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 parties shall be governed by, the law of the State of
Illinois 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.
The Marcus Corporation
By
[Title]
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE MARCUS
CORPORATION'S FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAY-29-1997
<PERIOD-START> MAY-31-1996
<PERIOD-END> NOV-14-1996
<CASH> 40,167
<SECURITIES> 0
<RECEIVABLES> 8,438
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 52,614
<PP&E> 611,458
<DEPRECIATION> 153,648
<TOTAL-ASSETS> 525,066
<CURRENT-LIABILITIES> 56,233
<BONDS> 170,546
0
0
<COMMON> 20,386
<OTHER-SE> 247,880
<TOTAL-LIABILITY-AND-EQUITY> 525,066
<SALES> 132,061
<TOTAL-REVENUES> 142,652
<CGS> 62,357
<TOTAL-COSTS> 107,747
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,668
<INCOME-PRETAX> 30,693
<INCOME-TAX> 12,283
<INCOME-CONTINUING> 18,410
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 18,410
<EPS-PRIMARY> .93
<EPS-DILUTED> .93
</TABLE>
