AMENDED AND RESTATED
MASTER GUARANTY
THIS AMENDED AND RESTATED MASTER GUARANTY ("Guaranty") dated
as of June 20, 2000, is executed and delivered by NPC RESTAURANTS
HOLDINGS, INC., NATIONAL CATERING COMPANY, INC., NPC RESTAURANTS,
LP, NPC INTERNATIONAL, INC., SEATTLE RESTAURANT EQUIPMENT COMPANY,
INC. and EACH OF THE PERSONS WHICH MAY BECOME A PARTY HERETO
(individually, a "Guarantor" and, collectively, the "Guarantors"),
to CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, ACTING AS ADMINISTRATIVE AGENT FOR THE RATABLE
BENEFIT OF THE BANKS (in such capacity, together with its
successors in such capacity, the "Agent").
ARTICLE 1.
Section 1.1 Definitions. As used in this Guaranty, these
terms shall have these respective meanings:
Banks means the financial institutions which are now or
hereafter become parties to the Credit Agreement.
Company means NPC Management, Inc., a Delaware
corporation, and its successors, assigns, trustees and
receivers.
Credit Agreement means the Second Amended and Restated
Revolving Credit Agreement of even date herewith, among
Company, Agent, Documentation Agent, Syndication Agent and
the Banks, as amended, modified, restated and supplemented
from time to time.
Debt means the sum of all Indebtedness of the Company or
any Obligor at any time evidenced by or arising pursuant to
any and all of the Notes, reimbursement obligations, or the
Letter of Credit Applications, and all other obligations and
Indebtedness of the Company or any Obligor at any time
incurred under or arising pursuant to or in connection with
the Credit Agreement or any of the Loan Documents. The Debt
includes interest and other obligations accruing or arising
in connection with the foregoing after (a) commencement of
any case under any bankruptcy or similar laws by or against
any Obligor or (b) the obligations of any Obligor shall cease
to exist by operation of law or for any other reason. The
Debt also includes all reasonable attorneys' fees and any
other expenses incurred by Agent or any Bank in negotiating,
monitoring or enforcing the Loans, the Notes, the Letter of
Credit Applications, the reimbursement obligations under the
Letters of Credit, or any of the Loan Documents or defending
against any claims made by Persons other than the Banks or
the Agent, arising directly or indirectly in respect of or on
account of any of the Debt.
Dollars and $ means lawful money of the United States of
America.
Guaranteed Debt means, as to any Guarantor, the Maximum
Amount, less the amounts, if any, of payments of the
Guaranteed Debt made by such Guarantor and clearly identified
as such in a notice accepted in writing by Agent confirming
the payment and reduction of the Guaranteed Debt as to such
Guarantor.
Guarantor's Net Worth means, as to any Guarantor, (a)
the fair value of the Property of such Guarantor from time to
time (taking into consideration the value, if any, of rights
of subrogation, contribution and indemnity), minus (b) the
total liabilities of such Guarantor (including contingent
liabilities [discounted in appropriate instances], but
excluding liabilities of such Guarantor under this Guaranty
and the other Loan Documents executed by such Guarantor) from
time to time. It is agreed that a Guarantor's Net Worth may
fluctuate from time to time after the date hereof as it is
determined on each Determination Date (as defined in the
definition of "Maximum Amount").
Joinder Agreement means each Joinder Agreement from time
to time executed and delivered to Agent by a Subsidiary of
NPCI, pursuant to the terms of the Credit Agreement, for the
purpose, among others, of becoming an additional Guarantor
hereunder, substantially in the form of Exhibit A attached
hereto.
Maximum Amount means, with respect to any Guarantor, the
greater of (i) all proceeds (without duplication) of the Debt
directly or indirectly (by intercompany loan, advance,
capital contribution, such Guarantor's ownership interest in
any Person receiving the proceeds of the Debt, or otherwise)
advanced to or for the account of, or used by or for the
benefit of, such Guarantor (which, in the case of NPCI, shall
mean 100% of the Debt); (ii) ninety-five percent (95%) of
Guarantor's Net Worth from time to time; or (iii) the amount
that in a legal proceeding brought within the applicable
limitations period is determined by the final, nonappealable
order of a court having jurisdiction over the issue and the
applicable parties to be the amount of value given by Agent
and Banks, or received by such Guarantor, in exchange for the
obligations of Guarantor under this Guaranty. If on the date
of any Loan made after the date hereof (any such date being
herein called a "Determination Date"), ninety-five percent
(95%) of such Guarantor's Net Worth is greater than either of
the amounts described in clauses (i) and (iii) above, the
Maximum Amount shall be deemed to have increased through and
as of such Determination Date to ninety-five percent (95%) of
such Guarantor's Net Worth as determined on such
Determination Date (and the Guaranteed Debt as to such
Guarantor shall have correspondingly increased), without
further action by or agreement between Agent and such
Guarantor, and any subsequent reduction or diminution of such
Guarantor's Net Worth after such Determination Date will not
reduce the Guaranteed Debt as to such Guarantor.
Notwithstanding anything to the contrary contained in this
definition of "Maximum Amount" or in any other provision of
this Guaranty, "Maximum Amount" shall never be less than the
amount referred to in clause (i) above.
Obligor means any person or entity now or hereafter
primarily or secondarily obligated to pay all or any part of
the Debt, including Company and each Guarantor.
Unless redefined in this Guaranty, capitalized terms used in this
Guaranty have the respective meanings ascribed to them in the
Credit Agreement.
ARTICLE 2.
Section 2.1 Execution of Loan Documents. Company and each
Guarantor has executed and delivered the Loan Documents to which
it is a party.
Section 2.2 Consideration. In consideration of the
credit and financial accommodations contemplated to be extended to
Company by the Banks pursuant to the Loan Documents or otherwise,
which each Guarantor has determined will substantially benefit it
directly or indirectly, and for other good and valuable
consideration, the receipt and sufficiency of which each Guarantor
hereby acknowledges, each Guarantor executes and delivers this
Guaranty to Agent with the intention of being presently and
legally bound by its terms.
ARTICLE 3.
Section 3.1 Payment Guaranty. Guarantors, as primary
obligors and not as sureties, unconditionally, jointly and
severally, guarantee to Agent for the benefit of the Banks the
full, prompt and punctual payment of the Debt when due (whether at
its stated maturity, by acceleration or otherwise) in accordance
with the Loan Documents, to the extent set forth herein. This
Guaranty is irrevocable, unconditional and absolute, and if for
any reason all or any portion of the Debt shall not be paid when
due, Guarantors, jointly and severally, will immediately pay the
Debt to Agent or other Person entitled to it, in Dollars,
regardless of (a) any defense, right of set-off or counterclaim
which any Obligor may have or assert, (b) whether Agent or any
other Person shall have taken any steps to enforce any rights
against any Obligor or any other Person to collect any of the Debt
and (c) any other circumstance, condition or contingency.
Notwithstanding any provision of this Guaranty or any other Loan
Document to the contrary, to the extent that in a legal proceeding
brought within the applicable limitations period it is determined
by the final, nonappealable order of a court having jurisdiction
over the issue and the applicable parties that any Guarantor
received less than a reasonably equivalent value in exchange for
such Guarantor's incurrence of its obligations under this
Guaranty, then and only then the total liability of such Guarantor
under this Guaranty shall be limited to the Guaranteed Debt
applicable to such Guarantor. Agent shall have the right to
determine and designate from time to time, without notice or
assent of such Guarantor, which portions of the Debt shall be
deemed included in the Guaranteed Debt. Each Guarantor
acknowledges that such determination and designation shall be
conclusive, absent manifest error. This Guaranty shall not fail
or be ineffective or invalid or be considered too indefinite or
contingent with respect to any Guarantor because the Guaranteed
Debt applicable to such Guarantor may fluctuate from time to time
or for any other reason.
Section 3.2 Application of Payments or Prepayments. The
parties hereto agree that any payment or prepayment by Company or
any other Person against the Debt (other than payments made by a
Guarantor in accordance with the procedures described in the
definition of "Guaranteed Debt" herein and then only with respect
to such Guarantor's liability hereunder) shall be deemed paid
first against that portion of the Debt not included in "Guaranteed
Debt" or determined for any reason not to be a part of "Guaranteed
Debt," and then shall be paid against any portion of the Debt that
is Guaranteed Debt, in such order and manner as Agent shall
determine in its sole discretion.
Section 3.3 Obligations Not Affected. Guarantors'
covenants, agreements and obligations under this Guaranty shall in
no way be released, diminished, reduced, impaired or otherwise
affected by reason of the happening from time to time of any of
the following things, for any reason, whether by voluntary act,
operation of law or order of any competent governmental authority
and whether or not Guarantors are given any notice or are asked
for or give any further consent (all requirements for which,
however arising, each Guarantor hereby WAIVES to the fullest
extent permitted by applicable law):
(1) release or waiver of any obligation or duty to
perform or observe any express or implied agreement,
covenant, term or condition imposed in any of the Loan
Documents or by applicable law on any Obligor or any party to
the Loan Documents;
(2) extension of the time for payment of any part of
the Debt or any other sums payable under the Loan Documents,
extension of the time for performance of any other obligation
under or arising out of or in connection with the Loan
Documents or change in the manner, place or other terms of
such payment or performance;
(3) settlement or compromise of any or all of the Debt;
(4) renewal, supplementing, modification,
rearrangement, amendment, restatement, replacement,
cancellation, rescission, revocation or reinstatement
(whether or not material) of any part of any of the Loan
Documents or any obligations under the Loan Documents of any
Obligor or any other party to the Loan Documents (without
limitation on the number of times any of the foregoing may
occur);
(5) acceleration of the time for payment or performance
of any Debt or other obligation under any of the Loan
Documents or exercise of any other right, privilege or remedy
under or in regard to any of the Loan Documents;
(6) failure, omission, delay, neglect, refusal or lack
of diligence by any Bank or Agent or any other Person to
assert, enforce, give notice of intent to exercise--or any
other notice with respect to--or exercise any right,
privilege, power or remedy conferred on any Bank or Agent or
any other Person in any of the Loan Documents or by law or
action on the part of any Bank or Agent or any other Person
granting indulgence, grace, adjustment, forbearance or
extension of any kind to any Obligor or any other Person;
(7) release, surrender, exchange, subordination or loss
of any security or lien priority under any of the Loan
Documents or in connection with the Debt;
(8) release, modification or waiver of, or failure,
omission, delay, neglect, refusal or lack of diligence to
enforce, any guaranty, pledge, mortgage, deed of trust,
security agreement, lien, charge, insurance agreement, bond,
letter of credit or other security device, guaranty, surety
or indemnity agreement whatsoever;
(9) taking or acceptance of any other security or
guaranty for the payment or performance of any or all of the
Debt or the obligations of any Obligor;
(10) release, modification or waiver of, or failure,
omission, delay, neglect, refusal or lack of diligence to
enforce, any right, benefit, privilege or interest under any
contract or agreement, under which the rights of any Obligor
have been collaterally or absolutely assigned, or in which a
security interest has been granted, to any Bank or Agent as
direct or indirect security for payment of the Debt or
performance of any other obligations to--or at any time held
by--any Bank or Agent;
(11) voluntary or involuntary liquidation, dissolution,
sale of any collateral, marshaling of assets and liabilities,
change in corporate or organizational status, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt or other similar proceedings of or
affecting any Obligor or any of the assets of any Obligor,
even if any of the Debt is thereby rendered void,
unenforceable or uncollectible against any other Person;
(12) occurrence or discovery of any irregularity,
invalidity or unenforceability of any of the Debt or Loan
Documents or any defect or deficiency in any of the Debt or
Loan Documents, including the unenforceability of any
provisions of any of the Loan Documents because entering into
any such Loan Document was ultra vires or because anyone who
executed them exceeded their authority;
(13) failure to acquire, protect or perfect any lien or
security interest in any collateral intended to secure any
part of the Debt or any other obligations under the Loan
Documents or failure to maintain perfection;
(14) failure by any Bank, Agent or any other Person to
notify--or timely notify--any Guarantor of any default, event
of default or similar event (however denominated) under any
of the Loan Documents, any renewal, extension, supplementing,
modification, rearrangement, amendment, restatement,
replacement, cancellation, rescission, revocation or
reinstatement (whether or not material) or assignment of any
part of the Debt, release or exchange of any security, any
other action taken or not taken by any Bank or Agent against
any Obligor or any other Person or any direct or indirect
security for any part of the Debt or other obligation of
Company, any new agreement between any Bank or Agent and any
Obligor or any other Person or any other event or
circumstance. Except as required by applicable law, neither
Agent nor any Bank has any duty or obligation to give any
Guarantor any notice of any kind under any circumstances
whatsoever with respect to or in connection with the Debt or
the Loan Documents;
(15) occurrence of any event or circumstances which
might otherwise constitute a defense available to, or a
discharge of, any Obligor, including failure of
consideration, fraud by or affecting any Person, usury,
forgery, breach of warranty, failure to satisfy any
requirement of the statute of frauds, running of any statute
of limitation, accord and satisfaction and any defense based
on election of remedies of any type; and
(16) receipt and/or application of any proceeds, credits
or recoveries from any source, including any proceeds,
credits, or amounts realized from exercise of any rights,
remedies, powers or privileges of any Bank or Agent under the
Loan Documents, by law or otherwise available to any Bank or
Agent except only as and to the extent the same reduces the
Guaranteed Debt pursuant to and in accordance with other
express provisions of this Guaranty.
Section 3.4 Waiver of Certain Rights and Notices. To the
fullest extent permitted by applicable law, each Guarantor hereby
WAIVES and RELEASES all right to require marshaling of assets and
liabilities, sale in inverse order of alienation, notice of
acceptance of this Guaranty and of any liability to which it
applies or may apply, notice of the creation, accrual, renewal,
increase, extension, modification, amendment or rearrangement of
any part of the Debt, presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of intent to
accelerate, notice of acceleration and all other notices and
demands, collection, suit and the taking of any other action by
any Bank or Agent.
Section 3.5 Not a Collection Guaranty. This is an
absolute guaranty of payment, and an absolute guaranty of
performance of all of the obligations of the Obligors under the
Loan Documents, and not of collection, and to the fullest extent
not prohibited by applicable law, each Guarantor WAIVES any right
to require that any action be brought against any Obligor or any
other Person, or that any Bank or Agent be required to enforce,
attempt to enforce or exhaust any rights, benefits or privileges
of any Bank or Agent under any of the Loan Documents, by law or
otherwise; provided that nothing herein shall be construed to
prevent any Bank or Agent from exercising and enforcing at any
time any right, benefit or privilege which any Bank or Agent may
have under any Loan Document or by law from time to time, and at
any time, and Guarantors agree that Guarantors' obligations
hereunder are--and shall be--absolute, independent, unconditional,
joint and several under any and all circumstances. Should any
Bank or Agent seek to enforce Guarantors' obligations by action in
any court, to the fullest extent not prohibited by applicable law,
each Guarantor WAIVES any requirement, substantive or procedural,
that (a) Agent pursue any foreclosure action, realize or attempt
to realize on any security or preserve or enforce any deficiency
claim against any Obligor or any other Person after any such
realization, (b) a judgment first be sought or rendered against
any Obligor or any other Person, (c) any Obligor or any other
Person be joined in such action or (d) a separate action be
brought against any Obligor or any other Person. Guarantors'
obligations under this Guaranty are several from those of any
other Obligor or any other Person, and are primary obligations
concerning which Guarantors are the principal obligors. All
waivers in this Guaranty or any of the Loan Documents shall be
without prejudice to any Bank or Agent at its option to proceed
against any Obligor or any other Person, whether by separate
action or by joinder. Guarantors agree that this Guaranty shall
not be discharged except by payment of the Debt in full, complete
performance of all obligations of the Obligors under the Loan
Documents and termination of each Bank's obligation--if any--to
make any further advances under the Loan Documents or extend other
financial accommodations to any Obligor.
Section 3.6 Subrogation. Each Guarantor agrees that to
the extent not prohibited by applicable law, it shall not be
entitled to be subrogated to Agent's or any Bank's rights against
any Obligor or any other Person or offset rights held by Agent or
any Bank for payment of the Debt until final termination of this
Guaranty.
Section 3.7 Reliance on Guaranty. All extensions of
credit and financial accommodations heretofore or hereafter made
by any Bank or Agent under or in respect of the Credit Agreement,
the Notes or any of the other Loan Documents shall be conclusively
presumed to have been made in acceptance of this Guaranty. This
Guaranty is in amendment and restatement of the Master Guaranty
dated as of May 8, 1997.
Section 3.8 Demands are Conclusive. Any demand by Agent
under this Guaranty shall be conclusive, absent manifest error, as
to the matters therein stated, including the amount due.
Section 3.9 Joint and Several. If any Person makes any
guaranty of any of the obligations guaranteed hereby or gives any
security for them, Guarantors' obligations hereunder shall be
joint and several with the obligations of such other Person
pursuant to such agreement or other papers making the guaranty or
giving the security.
Section 3.10 Payments Returned. Guarantors agree that, if
at any time all or any part of any payment previously applied by
Agent to the Debt is or must be returned by any Bank or Agent--or
recovered from any Bank or Agent--for any legally binding reason
(including the order of any bankruptcy court), to the extent not
prohibited by applicable law, this Guaranty shall automatically be
reinstated to the same effect as if the prior application had not
been made, and, in addition, each Guarantor hereby agrees, to the
extent not prohibited by applicable law, to indemnify each Bank
and Agent against, and to save and hold each Bank and Agent
harmless from any required return by any Bank or Agent--or
recovery from any Bank or Agent--of any such payment because of
its being deemed preferential under applicable bankruptcy,
receivership or insolvency laws, or for any other reason.
ARTICLE 4.
Each Guarantor warrants and represents as follows:
Section 4.1 Relationship to Company. The board of
directors of each Guarantor has determined that it may reasonably
expect to substantially benefit, directly or indirectly, from the
extension of credit to or for the benefit of the Company or any
other Guarantor pursuant to the Notes and the Loan Documents and,
accordingly, the incurrence of its liability and obligations
hereunder. The Company and each Guarantor are separate legal
entities but are under common ownership control, conduct related
businesses, enter into business and financial transactions with
one another periodically, and, in general, have a commonality of
interests. The maintenance and improvement of Company's financial
condition is vital to sustaining its business and the transactions
contemplated in the Credit Agreement produce distinct and
identifiable financial and economic direct or indirect benefits to
it. Such identifiable benefits include: (i) the availability to
it of the benefit of Letters of Credit and the proceeds of the
Loans on an as needed basis by way of intercompany loans and/or
capital contributions for general corporate or other purposes and
(ii) the general improvement of its financial and economic
condition. It has had full and complete access to the Loan
Documents and all other papers executed by any Obligor or any
other Person in connection with the Debt, has reviewed them and is
fully aware of the meaning and effect of their contents. It is
fully informed of all circumstances which bear upon the risks of
executing this Guaranty and which a diligent inquiry would reveal.
It has adequate means to obtain from Company on a continuing basis
information concerning Company's financial condition, and is not
depending on Agent or any Bank to provide such information, now or
in the future. It agrees that neither Agent nor any Bank shall
have an obligation to advise or notify it or to provide it with
any such data or information. The execution and delivery of this
Guaranty is not a condition precedent (and neither Agent nor any
Bank has in any way implied that the execution of this Guaranty is
a condition precedent), nor does it create an obligation or
commitment, to Agent's or any Bank's making, extending or
modifying any loan or any other financial accommodation to or for
it. The Company and the Guarantors are and intend to remain
separate legal entities and nothing in this Section 4.1 is
intended or shall act to invalidate or impair the separate
corporate or other organizational existence or status of the
Company or any Guarantor.
Section 4.2 Proceedings. No bankruptcy or insolvency
proceedings are pending or contemplated by or against it.
ARTICLE 5.
Section 5.1 Covenants for the Benefit of Agent.
Guarantors, jointly and severally, covenant and agree that, until
termination of the Credit Agreement in accordance with its terms,
each Guarantor will promptly, after learning of any Unmatured
Event of Default or Event of Default, notify Agent of it in
writing, specifying its nature, the period of its existence and
what action Guarantors are taking or propose to take with respect
thereto.
ARTICLE 6.
Section 6.1 Term. Subject to the automatic reinstatement
provisions of Article 3 above, this Guaranty shall terminate and
be of no further force or effect upon the termination of the
Credit Agreement and the indefeasible payment of the Debt in full
in cash.
ARTICLE 7.
Section 7.1 Default. If any Event of Default occurs
under the Credit Agreement, then that shall automatically
constitute default under this Guaranty.
ARTICLE 8.
Section 8.1 Binding on Successors; No Assignment by
Guarantors. All guaranties, warranties, representations,
covenants and agreements in this Guaranty shall bind the trustees,
receivers, successors and assigns of each Guarantor and shall
benefit the Banks and Agent, their respective successors and
assigns, and any holder of any part of the Debt. No Guarantor
shall assign or delegate any of its obligations under this
Guaranty or any of the other Loan Documents without the express
prior written consent of Agent.
Section 8.2 Subordination of Company's Obligations to
Guarantors. Each Guarantor agrees that if, for any reason
whatsoever, Company now or hereafter owes any Indebtedness,
directly or indirectly, to any Guarantor, or any Guarantor now or
hereafter owes any Indebtedness, directly or indirectly, to any
other Guarantor, all such Indebtedness, together with all interest
thereon and fees and other charges in connection therewith, and
all Liens securing any such Indebtedness shall at all times be
second, subordinate and inferior in right of payment, in lien
priority and in all other respects to the Debt and the fulfillment
of any such indebted Guarantor's obligations hereunder or under
any of the other Loan Documents and all Liens from time to time
securing the Debt. The provisions of this Section are in addition
to, and cumulative of, any other provisions contained in any other
Loan Document or other document, instrument or writing.
Section 8.3 Waiver of Suretyship Rights. By signing this
Guaranty or executing a Joinder Agreement, each Guarantor, to the
fullest extent not prohibited by applicable law, WAIVES each and
every right to which it may be entitled by virtue of any
suretyship law, including any rights it may have pursuant to Rule
31 of the Texas Rules of Civil Procedure, Section 17.001 of the
Texas Civil Practice and Remedies Code and Chapter 34 of the Texas
Business and Commerce Code, as the same may be amended from time
to time.
Section 8.4 Indemnification. To the fullest extent not
prohibited by applicable law, Guarantors, jointly and severally,
agree to indemnify, defend and hold each Bank and Agent and their
respective shareholders, directors, officers, agents, attorneys,
advisors and employees (collectively, the "Indemnified Parties")
harmless from and against any and all loss, liability, obligation,
damage, penalty, judgment, claim, deficiency, expense, action,
suit, cost and disbursement of any kind or nature whatsoever
(including interest, penalties, attorneys' fees and amounts paid
in settlement) (the "Losses"), regardless of whether caused in
whole or in part by the negligence of any of the Indemnified
Parties, imposed on, incurred by or asserted against the
Indemnified Parties growing out of or resulting from any Loan
Document or any transaction or event contemplated therein, except
to the extent determined by a final decision of a court of
competent jurisdiction that such Loss was due to the gross
negligence or willful misconduct of such Indemnified Party. Any
amount to be paid under this Section by Guarantors to any Bank or
Agent shall be a joint and several demand obligation owing by
Guarantors and shall bear interest from the date of expenditure
until paid at the rate set forth in Section 6.1 of the Credit
Agreement.
Section 8.5 Amendments in Writing. This Guaranty shall
not be changed orally but shall be changed only by agreement in
writing signed by each Guarantor and Agent. Any waiver or consent
with respect to this Guaranty shall be effective only in the
specific instance and for the specific purpose for which given.
No course of dealing between the parties, no usage of trade and no
parole or extrinsic evidence of any nature shall be used to
supplement or modify any of the terms or provisions of this
Guaranty.
Section 8.6 Notices. Any notices or other communications
required or permitted to be given hereunder shall be given, made
and received in the manner provided in Section 15.2 of the Credit
Agreement; provided, that with respect to the Guarantors, any such
notices or other communications shall be sent to them at the
"Address for Notices" specified below their respective names on
the signature pages hereof or on the signature pages of any
Joinder Agreement or at such other address as shall be designated
by such recipient in a notice to the other parties hereto given in
accordance with Section 15.2 of the Credit Agreement.
Section 8.7 Gender; "Including" is Not Limiting; Section
Headings. The masculine and neuter genders used in this Guaranty
each includes the masculine, feminine and neuter genders, and the
singular number includes the plural where appropriate, and vice
versa. Wherever the term "including" or a similar term is used in
this Guaranty, it shall be read as if it were written "including
by way of example only and without in any way limiting the
generality of the clause or concept referred to." The headings
used in this Guaranty are included for reference only and shall
not be considered in interpreting, applying or enforcing this
Guaranty.
Section 8.8 Offset Rights.
(1) Guarantors agree that, in addition to (and without
limitation of) any right of set-off, bankers' lien or
counterclaim a Bank may otherwise have, to the fullest extent
not prohibited by applicable law, each Bank shall be
entitled, at its option, upon the occurrence and during the
continuance of an Event of Default to offset balances held by
it for the account of any Guarantor at any of its offices, in
Dollars or in any other currency, against any obligations of
Guarantors hereunder or under any other Loan Document, which
is not paid when due, in which case it shall promptly notify
the affected Guarantor and Agent thereof, provided that such
Bank's failure to give such notice shall not affect the
validity thereof.
(2) If a Bank shall obtain payment of any obligation
then due hereunder or under any other Loan Document to such
Bank, through the exercise of any right of set-off, banker's
lien, counterclaim or similar right, or otherwise, it shall
promptly purchase from the other Banks participations in the
Loans made, or reimbursement obligations or other obligations
held, by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the
end that all the Banks shall share the benefit of such
payment (net of any expenses which may be incurred by such
Bank in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the
obligations then due to each of them. To such end all the
Banks shall make appropriate adjustments among themselves (by
the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
(3) Guarantors agree, that any Bank so purchasing a
participation in the Loans made, or reimbursement obligations
or other obligations held, by other Banks may to the fullest
extent it may effectively do so under applicable law,
exercise all rights of set-off, bankers' lien, counterclaim
or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans and
reimbursement obligations or other obligations in the amount
of such participation. Nothing contained herein shall
require any Bank to exercise any such right or shall affect
the right of any Bank to exercise, and retain the benefits of
exercising, any such right with respect to any other
Indebtedness of Guarantors.
Section 8.9 CHOICE OF LAW. THIS GUARANTY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS
OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA FROM TIME
TO TIME IN EFFECT.
Section 8.10 Survival. The representations, covenants and
agreements set forth in this Guaranty shall continue and survive
until final termination of this Guaranty.
Section 8.11 Rights Cumulative; Delay Not Waiver. Any
Bank's or Agent's exercise of any right, benefit or privilege
under any of the Loan Documents or any other papers or at law or
in equity shall not preclude the concurrent or subsequent exercise
of any other present or future rights, benefits or privileges or
any Bank or Agent. The remedies provided in this Guaranty are
cumulative and not exclusive of any remedies provided by law, the
Loan Documents or any other papers or in equity. No failure by
any Bank or Agent to exercise, and no delay in exercising, any
right under any Loan Document or any other papers shall operate as
a waiver thereof.
Section 8.12 Severability. If any provision of this
Guaranty is held to be illegal, invalid or unenforceable under
present or future laws, the legality, validity and enforceability
of the remaining provisions of this Guaranty shall not be affected
thereby, and this Guaranty shall be liberally construed so as to
carry out the intent of the parties to it. Each waiver in this
Guaranty is subject to the overriding and controlling rule that it
shall be effective only if and to the extent that (a) it is not
prohibited by applicable law and (b) applicable law neither
provides for nor allows any material sanctions to be imposed
against any Bank or Agent for having bargained for and obtained
it.
Section 8.13 Entire Agreement. This Guaranty embodies the
entire agreement and understanding between Guarantors and the
Banks and Agent with respect to its subject matter and supersedes
all prior conflicting or inconsistent agreements, consents and
understandings relating to such subject matter. Guarantors
acknowledge and agree that there is no oral agreement between any
Guarantor and any Bank or Agent which has not been incorporated in
this Guaranty.
Section 8.14 Usury Not Intended; Savings Provisions.
Notwithstanding any provision to the contrary contained in any
Loan Document, it is expressly provided that in no case or event
shall the aggregate of any amounts accrued or paid pursuant to
this Guaranty which under applicable laws are or may be deemed to
constitute interest ever exceed the maximum nonusurious interest
rate permitted by applicable Texas or federal laws, whichever
permit the higher rate. In this connection, each Guarantor and
Agent on behalf of the Banks stipulate and agree that it is their
common and overriding intent to contract in strict compliance with
applicable usury laws. In furtherance thereof, none of the terms
of this Guaranty shall ever be construed to create a contract to
pay, as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the maximum rate permitted
by applicable laws. Guarantors shall never be liable for interest
in excess of the maximum rate permitted by applicable laws. If,
for any reason whatever, such interest paid or received during the
full term of the applicable indebtedness produces a rate which
exceeds the maximum rate permitted by applicable laws, the Banks
shall credit against the principal of such indebtedness (or, if
such indebtedness shall have been paid in full, shall refund to
the payor of such interest) such portion of said interest as shall
be necessary to cause the interest paid to produce a rate equal to
the maximum rate permitted by applicable laws. All sums paid or
agreed to be paid to the Banks for the use, forbearance or
detention of money shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the applicable indebtedness, so that
the interest rate is uniform throughout the full term of such
indebtedness. The provisions of this Section shall control all
agreements, whether now or hereafter existing and whether written
or oral, between any Guarantor and Agent or any Bank.
ARTICLE 9.
Section 9.1 It is contemplated by each Guarantor that
additional Subsidiaries of NPCI may from time to time become a
Guarantor hereunder (as required by the terms of the Credit
Agreement) by their execution and delivery to Agent on behalf of
the Banks of a Joinder Agreement. Each Guarantor agrees, consents
and acknowledges that upon the execution and delivery to Agent by
any such Subsidiary of a Joinder Agreement, such Subsidiary shall
become a Guarantor hereunder for all purposes, jointly and
severally liable hereunder as if such Subsidiary had originally
been a party hereto, without notice to any Guarantor or any other
Party.
THIS GUARANTY is executed as of the date first above written.
NPC RESTAURANTS HOLDINGS, INC.
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
NATIONAL CATERING COMPANY,
INC.
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
NPC RESTAURANTS, LP
By: NPC INTERNATIONAL,
INC., its general
partner
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
NPC INTERNATIONAL, INC.
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
SEATTLE RESTAURANT EQUIPMENT
COMPANY, INC.
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
ACKNOWLEDGED:
NPC MANAGEMENT, INC.
By: /s/ Troy D. Cook
Name: Troy D. Cook
Title: Senior V.P.
JOINDER AGREEMENT
This JOINDER AGREEMENT (this "Joinder Agreement") is dated
effective as of ________, 20___, and is executed and delivered by
___________________________________ (the "Joining Guarantor"), a
______________________, to CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association, AS ADMINISTRATIVE
AGENT ON BEHALF OF BANKS (in such capacity, together with its
successors in such capacity, the "Agent").
W I T N E S S E T H:
RECITALS:
1. NPC Management, Inc., a Delaware corporation
("Company"), has entered into that certain Second Amended and
Restated Revolving Credit Agreement dated as of June 20, 2000 (as
amended, modified, restated and supplemented from time to time,
the "Credit Agreement") with Agent and certain financial
institutions which are signatories thereto or which may become a
party thereto from time to time.
2. Pursuant to the terms of the Credit Agreement, and as a
condition (among others) for making the initial advance thereunder
and issuing the initial Letter of Credit pursuant thereto, NPCI
and certain Subsidiaries of NPCI executed and delivered to Agent
an Amended and Restated Master Guaranty of even date with the
Credit Agreement, pursuant to which, among other things, each of
such Subsidiaries, jointly and severally, unconditionally
guaranteed the payment of all of the Debt (subject to certain
limitations, as provided therein). The Master Guaranty, as
amended, modified, supplemented, joined in and restated from time
to time, is herein called the "Guaranty." All Persons from time to
time a party to the Guaranty (whether originally or by joinder)
are herein collectively called the "Guarantors," and are each a
"Guarantor," herein.
3. Pursuant to the terms of the Credit Agreement, the
Joining Guarantor is now required, among other things and subject
to certain terms and conditions, to join in the execution and
delivery to Agent on behalf of Banks of the Guaranty by its
execution and delivery of this Joinder Agreement and otherwise by
such action as Agent or any Bank may reasonably require.
4. In order to comply with such requirement, the Joining
Guarantor executes and delivers this Joinder Agreement.
AGREEMENTS:
Now, in consideration of the credit and financial
accommodations extended and to be extended to Company pursuant to
the Credit Agreement and the other Loan Documents or otherwise,
which Joining Guarantor hereby agrees have and shall continue to
benefit Joining Guarantor and its shareholders as described in the
Guaranty, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Joining
Guarantor hereby agrees, assumes, ratifies, joins and acknowledges
as follows:
1. Assumption. Joining Guarantor hereby unconditionally,
jointly and severally, assumes liability for all Guarantees,
covenants, warranties, representations, indemnifications,
obligations and other Indebtedness of Guarantors now existing or
which may hereafter arise under the Guaranty and shall be liable
therefor as though Joining Guarantor had originally been a party
to the Guaranty. Without limitation of the foregoing, Joining
Guarantor, as a primary obligor and not as a surety,
unconditionally, jointly and severally, guarantees unto Agent for
the benefit of Banks the payment of the Debt when due (whether at
the stated maturity, by acceleration or otherwise) in accordance
with the terms of the Loan Documents. Notwithstanding the
foregoing and the other provisions of this Joinder Agreement, to
the extent that in a legal proceeding brought within the
applicable limitations period it is determined by the final, non-
appealable order of a court having jurisdiction over the issue and
the applicable parties that Joining Guarantor received less than a
reasonably equivalent value in exchange for such Joining
Guarantor's incurrence of its obligations under the Guaranty, then
and only then the liability of Joining Guarantor under the
Guaranty shall be limited to the Guaranteed Debt applicable to
such Joining Guarantor. Agent shall have the right to determine
and designate from time to time, without notice or assent of
Joining Guarantor, which portions of the Debt shall be deemed
included in the Guaranteed Debt. Joining Guarantor acknowledges
that such determination and designation shall be conclusive,
absent manifest error. The Guaranty shall not fail or be
ineffective or invalid or be considered too indefinite or
contingent with respect to Joining Guarantor because the
Guaranteed Debt applicable to Joining Guarantor may fluctuate from
time to time or for any other reason. Any payment or prepayment
by Company or any other Person against the Debt (other than
payments made by a Guarantor in accordance with the procedures
described in the definition of "Guaranteed Debt" in the Guaranty
and then only with respect to such Guarantor's liability
hereunder) shall be deemed paid first against that portion of the
Debt not included in "Guaranteed Debt" or determined for any
reason not to be a part of "Guaranteed Debt," and then shall be
paid against any portion of the Debt that is Guaranteed Debt, in
such order and manner as Agent shall determine in its sole
discretion.
2. Terms Ratified. Joining Guarantor hereby expressly
joins under the Guaranty and ratifies all Guaranties, terms,
covenants, representations, warranties, agreements, provisions,
indemnifications, WAIVERS, RELEASES, restrictions, duties and
responsibilities of Guarantors under the Guaranty and agrees that
they shall apply to Joining Guarantor as if Joining Guarantor had
executed the Guaranty and that any reference to "Guarantors" or a
"Guarantor" contained in the Guaranty, the Credit Agreement or any
other Loan Documents shall mean, without limitation, the Joining
Guarantor.
3. Representations. Joining Guarantor (a) confirms that it
has received a copy of the Loan Documents, together with such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Joinder Agreement; (b) agrees that it will, independently and
without reliance upon Agent or any Bank and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, (c) represents that the
value of the consideration received and to be received by Joining
Guarantor is reasonably worth at least as much as the liability
and obligation of such Joining Guarantor hereunder, and that such
liability and obligation may reasonably be expected to benefit
Joining Guarantor directly or indirectly and (d) affirms and makes
the representations provided in Section 4 of the Guaranty as if
set forth herein. The Board of Directors of Joining Guarantor has
duly adopted resolutions certifying that the execution, delivery
and performance of this Joinder Agreement (and the effect thereof)
will benefit Joining Guarantor and its shareholders.
4. No Impairment. Nothing herein shall in any manner
impair or extinguish the Guaranty or any of the other Loan
Documents or any lien or security interest now or hereafter
securing the payment of any of the Indebtedness arising pursuant
to the Loan Documents.
5. Conditions. This Joinder Agreement shall not become
effective until the Joining Guarantor shall have delivered to
Agent each of the following:
5.1 a certificate of the Secretary or any Assistant
Secretary of Joining Guarantor (or other officer or director
of Joining Guarantor which is authorized in Joining
Guarantors organizational documents to keep the minute book
or similar record of Joining Guarantor), in form and
substance satisfactory to the Banks, dated as of the date
hereof, as to (i) the resolutions of the Board of Directors
(or similar governing body) of the Joining Guarantor
authorizing the execution, delivery and performance of this
Joinder Agreement and of all instruments contemplated herein
to be executed and delivered by Joining Guarantor in
connection herewith (a copy of such resolutions to be
incorporated into such certificate), such certificate to
state that said copy is a true and correct copy of such
resolutions and that such resolutions were duly adopted and
have not been amended, superseded, revoked or modified in any
respect and remain in full force and effect as of the date of
such certificate; (ii) the election, incumbency and
signatures of the officer or officers (or other official) of
Joining Guarantor executing and delivering this Joinder
Agreement and each other instrument or document furnished in
connection herewith; (iii) Joining Guarantor's organizational
documents in effect as of the date hereof (a copy thereof to
be attached to the certificate), and (iv) such other
documents and information as Agent or any Bank shall
reasonably request; and
5.2 a legal opinion from the legal counsel for Joining
Guarantor acceptable to Agent in form and substance
satisfactory to the Banks.
6. Governing Law. Unless otherwise specified therein, this
Joinder Agreement shall be governed by and construed in accordance
with the laws of the State of Texas and the United States of
America.
7. Survival; Parties Bound. All representations,
warranties, covenants and agreements made by or on behalf of the
Joining Guarantor in connection herewith shall survive the
execution and delivery of this Joinder Agreement and the other
Loan Documents, shall not be affected by any investigation made by
any Person, and shall bind the Joining Guarantor and its
successors, trustees, receivers and assigns and inure to the
benefit of the successors and assigns of Agent and Banks. The
term of this Joinder Agreement shall be until the termination of
the Guaranty as to all Parties.
8. Captions. The headings and captions appearing in this
Joinder Agreement have been included solely for convenience and
shall not be considered in construing this Joinder Agreement.
9. Definitions. Terms used herein and not defined herein,
but which are defined in the Credit Agreement or the Guaranty,
shall have the meanings herein assigned to them in the Credit
Agreement or the Guaranty, respectively.
10. Parties Bound. This Joinder Agreement shall bind and
benefit the parties hereto and their respective successors and
assigns, except that Joining Guarantor and Company may not assign
their rights or obligations hereunder without the prior written
consent of Agent and Banks.
11. Amendments, Etc, No amendment or waiver of any
provision of this Joinder Agreement or any other Loan Document,
nor any consent to any departure by the Joining Guarantor
therefrom, shall in any event be effective unless the same shall
be agreed or consented to by Agent, Banks and Joining Guarantor,
and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given,
unless otherwise specifically provided in the Credit Agreement.
IN WITNESS WHEREOF, the Joining Guarantor has executed this
Agreement as of the date set forth above.
By:
Name:
Title:
ATTEST:
Name:
Title:
