Exhibit (10)(as)
[Conformed Copy]
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CREDIT AGREEMENT
dated as of
March 13, 1998
PREMIER PARKS INC.,
THE SUBSIDIARY GUARANTORS THEREOF,
THE LENDERS PARTY HERETO
AND
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
AND
XXXXXX BROTHERS INC.,
as Advisor, Arranger,
and Syndication Agent,
$300,000,000
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[Exhibit B has been conformed to appear as delivered and
Exhibits D and E are photocopies of the Opinions as delivered.
Amendment No. 1 has been conformed to appear as delivered
and is attached at the end.]
TABLE OF CONTENTS
Page
Section 1. Definitions and Accounting Matters...............................1
1.01. Certain Defined Terms.........................................1
1.02. Accounting Terms and Determinations..........................23
1.03. Classes and Types of Loans...................................24
1.04. Terms Generally..............................................24
Section 2. Commitments, Loans, Notes and Prepayments.......................24
2.01 Loans........................................................24
2.02. Borrowings...................................................26
2.03. Letters of Credit............................................26
2.04. Changes of Commitments.......................................31
2.05. Commitment Fee...............................................32
2.06. Lending Offices..............................................32
2.07. Several Obligations; Remedies Independent....................32
2.08. Notes........................................................32
2.09. Optional Prepayments and Conversions or Continuations
of Loans.....................................................33
2.10. Mandatory Prepayments and Reductions of Commitments..........34
Section 3. Payments of Principal and Interest..............................37
3.01. Repayment of Loans...........................................37
3.02. Interest.....................................................40
Section 4. Payments; Pro Rata Treatment; Computations, Etc.................40
4.01. Payments.....................................................40
4.02. Pro Rata Treatment...........................................41
4.03. Computations.................................................42
4.04. Minimum Amounts..............................................42
4.05. Certain Notices..............................................42
4.06. Non-Receipt of Funds by the Administrative Agent.............43
4.07. Sharing of Payments, Etc.....................................44
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Section 5. Yield Protection, Etc...........................................45
5.01. Additional Costs...........................................45
5.02. Limitation on Types of Loans...............................47
5.03. Illegality.................................................47
5.04. Treatment of Affected Loans................................48
5.05. Compensation...............................................48
5.06. Additional Costs in Respect of Letters of Credit...........49
5.07. U.S. Taxes.................................................49
5.08. Replacement of Lenders.....................................50
Section 6. Guarantee.......................................................51
6.01. The Guarantee................................................51
6.02. Obligations Unconditional....................................52
6.03. Reinstatement................................................53
6.04. Subrogation..................................................53
6.05. Remedies.....................................................53
6.06. Instrument for the Payment of Money..........................53
6.07. Continuing Guarantee.........................................53
6.08. Rights of Contribution.......................................53
6.09. General Limitation on Guarantee Obligations..................54
Section 7. Conditions......................................................55
7.01. Initial Extension of Credit of any Class.....................55
7.02. Walibi Acquisition and Tender Offer Loans....................57
7.03. Initial and Subsequent Extensions of Credit..................58
Section 8. Representations and Warranties..................................59
8.01. Organization; Powers.........................................59
8.02. Financial Condition..........................................59
8.03. Litigation...................................................60
8.04. No Breach....................................................60
8.05. Action.......................................................61
8.06. Approvals....................................................61
8.07. Properties and Permits, Etc..................................61
8.08. Environmental Matters........................................62
8.09. Compliance with Laws and Agreements..........................64
8.10. Investment Company Act.......................................64
8.11. Public Utility Holding Company Act...........................64
8.12. Taxes........................................................65
8.13. ERISA........................................................65
8.14. True and Complete Disclosure.................................65
8.15. Use of Credit................................................65
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8.16. Debt Agreements and Liens....................................65
8.17. Capitalization...............................................66
8.18. Subsidiaries and Investments.................................66
8.19. Parks; Real Property.........................................67
8.20. Insurance....................................................67
8.21. Labor Maters.................................................67
8.22. Solvency.....................................................68
Section 9. Covenants of the Borrower.......................................68
9.01. Financial Statements and Other Information...................68
9.02. Notices of Material Events...................................70
9.03. Existence, Etc...............................................71
9.04. Insurance....................................................72
9.05. Prohibition of Fundamental Changes...........................74
9.06. Liens........................................................77
9.07. Indebtedness.................................................78
9.08. Investments..................................................79
9.09. Restricted Payments..........................................80
9.10. Certain Financial Covenants..................................81
9.11. Subordinated Indebtedness....................................82
9.12. Lines of Business............................................83
9.13. Transactions with Affiliates.................................83
9.14. Use of Proceeds, Etc.........................................83
9.15. Certain Further Assurances...................................84
9.16. Modifications of Certain Documents...........................85
9.17. Prepayment of Certain Indebtedness...........................85
Section 10. Events of Default...............................................86
Section 11. The Administrative Agent and Arranger..........................90
11.01. Appointment, Powers and Immunities...........................90
11.02. Reliance by Administrative Agent.............................91
11.03. Defaults.....................................................91
11.04. Rights as a Lender...........................................91
11.05. Indemnification..............................................92
11.06. Non-Reliance on Administrative Agent, the Arranger
and Other Lenders............................................92
11.07. Failure to Act...............................................93
11.08. Resignation or Removal of Administrative Agent...............93
11.09. Consents under Other Loan Documents..........................93
11.10. Arranger.....................................................94
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Section 12. Other Provisions...............................................94
12.01. Notices......................................................94
12.02. Waiver.......................................................94
12.03. Amendments, Etc..............................................94
12.04. Expenses, Etc................................................95
12.05. Successors and Assigns.......................................96
12.06. Assignments and Participations...............................96
12.07. Survival.....................................................98
12.08. Counterparts.................................................99
12.09. Governing Law; Submission to Jurisdiction....................99
12.10. WAIVER OF JURY TRIAL.........................................99
12.11. Captions.....................................................99
12.12. Confidentiality..............................................99
12.13. Limitation of Liability.....................................100
EXHIBITS
Exhibit A-1 - Form of Facility A Revolving Credit Note
Exhibit A-2 - Form of Facility B Term Loan Note
Exhibit A-3 - Form of Facility C Term Loan Note
Exhibit B - Form of Security Agreement
Exhibit C - Form of Guarantee Assumption Agreement
Exhibit D - Form of Opinion of Counsel to the Obligors
Exhibit E - Form of Opinion of Special New York Counsel to the Arranger
Exhibit F - Form of Assignment and Acceptance
SCHEDULES
Schedule I - Commitments
Schedule II - Debt Agreements and Liens
Schedule III - Environmental Matters
Schedule IV - Subsidiaries and Investments
Schedule V - Existing Parks and Real Property
Schedule VI - Litigation
Schedule VII - Insurance
Schedule VIII - Certain EBITDA Adjustments
CREDIT AGREEMENT dated as of March 13, 1998, between: PREMIER
PARKS INC., a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Borrower"); each of the Subsidiaries of the Borrower
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identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto and each Subsidiary of the Borrower that becomes a "Subsidiary Guarantor"
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after the date hereof pursuant to Section 9.15(a) (individually, a "Subsidiary
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Guarantor" and, collectively, the "Subsidiary Guarantors" and, together with the
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Borrower, the "Obligors"); each of the lenders that is a signatory hereto
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identified under the caption "LENDERS" on the signature pages hereto and each
lender that becomes a "Lender" after the date hereof pursuant to Section
12.06(b) (individually, a "Lender") and, collectively, the "Lenders"); XXXXXX
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COMMERCIAL PAPER INC., as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
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Agent"); and XXXXXX BROTHERS INC., a Delaware corporation, as advisor, arranger
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and syndication agent (the "Arranger").
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Pursuant to a Stock Purchase Agreement dated as of December 15,
1997 between Premier Parks Inc. and Centrag S.A., Xxxxxx N.V. and Westkoi N.V.,
each a Belgian corporation, the parties thereto have agreed to effect the Walibi
Acquisition (as hereinafter defined) providing, inter alia, for the purchase by
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the Borrower of the capital stock of Walibi S.A., a Belgian corporation, so that
upon consummation of all of the transactions contemplated by the Walibi
Acquisition Agreement (as hereinafter defined) the Borrower shall own an amount
of shares of capital stock of Walibi S.A., equal to at least 49% of the number
of outstanding shares. In that connection, the Borrower has requested that the
Lenders extend credit to it, under the Guarantee of the Subsidiary Guarantors,
in an aggregate principal or face amount not exceeding $300,000,000 to finance
the Walibi Acquisition, to refinance certain existing indebtedness, to enable
certain acquisitions and capital expenditures to be made by the Obligors, and to
finance other general corporate needs of the Obligors, and the Lenders are
prepared to extend such credit upon the terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01. Certain Defined Terms.
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As used herein, the following terms shall have the following
meanings (all terms defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in the plural and
vice versa and all references herein to Sections, Exhibits and Schedules shall
be construed to refer to Sections of, and Exhibits and Schedules to, this
Agreement):
"Additional Costs" has the meaning set forth in Section 5.01.
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"Administrative Agent" has the meaning set forth in the preamble.
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"Administrative Questionnaire" means an Administrative
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Questionnaire in a form supplied by the Administrative Agent.
"Advance Date" has the meaning set forth in Section 4.06.
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"Affiliate" means any Person that directly or indirectly
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controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any Person
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that owns directly or indirectly securities having 10% or more of the voting
power for the election of directors or other governing body of a corporation or
10% or more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing, (a) no
individual shall be an Affiliate solely by reason of his or her being a
director, officer or employee of the Borrower or any of its Subsidiaries and (b)
none of the Wholly Owned Subsidiaries of the Borrower, Marine World/Africa USA
in Vallejo, California or Marine World Joint Powers Authority, a joint exercise
of powers authority created under the laws of the State of California shall be
Affiliates.
"Anniversary Date" has the meaning set forth in Section 9.04.
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"Applicable Lending Office" means, for each Lender and for each
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Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan in such Lender's Administrative
Questionnaire or such other office of such Lender (or of an affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Rate" means for any day, with respect to any Base
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Rate Loan or Eurodollar Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth bel w
under the caption "Base Rate Loans", "Eurodollar Loans" or "Commitment Fee", as
the case may be, based upon the Leverage Ratio as at the last day of the fiscal
quarter most recently ended as to which the Borrower has delivered financial
statements pursuant to Section 9.01:
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LEVERAGE RATIO: FACILITY A FACILITY C
REVOLVING LOAN TERM LOAN COMMITMENT
AND FEE:
FACILITY B
TERM LOAN
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BASE RATE EURODOLLAR BASE RATE EURODOLLAR
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Greater than or equal to 5.00 1.000% 2.250% 1.000% 2.250% 0.500%
to 1
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Greater than or equal to
4.50 to 1 and less than 5.00 0.750% 2.000% 1.000% 2.250% 0.500%
to 1
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Greater than or equal to
4.00 to 1 and less than 4.50 0.500% 1.750% 1.000% 2.250% 0.400%
to 1
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Greater than or equal to
3.50 to 1 and less than 4.00 0.000% 1.250% 0.750% 2.000% 0.350%
to 1
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Greater than or equal to
3.00 to 1 and less than 3.50 0.000% 1.000% 0.750% 2.000% 0.250%
to 1
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Less than 3.00 to 1 0.000% 0.750% 0.750% 2.000% 0.200%
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Notwithstanding the foregoing, for the period from the Closing Date until six
months following the Syndication Completion Date, (a) the Applicable Rate for
(i) Facility A Revolving Credit Loans and Facility B Term Loans shall be 0.875%
in the case of Base Rate Loans and 2.125% in the case of Eurodollar Loans and
(ii) Facility C Term Loans shall be 1.00% in the case of Base Rate Loans and
2.250% in the case of Eurodollar Loans and (b) the Commitment Fee shall be
0.500%.
Subject to the last sentence of the immediately preceding
paragraph, each change in the "Applicable Rate" based upon any change in the
Leverage Ratio shall become effective for purposes of the accrual of interest
and commitment fees hereunder on the date three Business Days after the delivery
to the Administrative Agent and each Lender of the financial statements of the
Borrower and its Subsidiaries for the most recently ended fiscal quarter
pursuant to Section 9.01, and shall remain effective for such purpose until
three Business Days after the next delivery of such financial statements to the
Administrative Agent and each Lender hereunder, provided that, notwithstanding
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the foregoing, the Applicable Rate shall be the highest rates provided for in
the above schedule for any period during which either (i) an Event of Default
shall have occurred and be continuing or (ii) the Borrower shall be in default
of its obligation to deliver financial statements for any fiscal quarter by the
times specified in Section 9.01 (but upon the cure or waiver of any such Event
of Default or default, this proviso shall no longer be applicable until another
such Event of Default or default shall occur).
"Assignment and Acceptance" means an assignment and acceptance
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entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 12.06(b)), and accepted by the Administrative
Agent, in the form of Exhibit F or any other form approved by the Administrative
Agent.
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"Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as
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amended from time to time.
"Base Rate" means, for any day, a rate per annum equal to the
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higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at rates based
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upon the Base Rate.
"Basic Documents" means the Loan Documents and the Walibi
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Acquisition Agreement.
"Basle Accord" means the proposals for risk-based capital
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framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Borrower" means Premier Parks Inc. (to be renamed "Premier
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Parks Operations Inc." upon consummation of the Premier Merger).
"Business Day" means any day (a) on which commercial banks are
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not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period, expenditures
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(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Borrower or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements) during such period, computed
in accordance with GAAP, but excluding (i) repairs in respect of any such assets
and (ii) the amount of any such assets acquired (x) with the proceeds of any
Casualty Event (or reimbursed in whole or in part with the Net Available
Proceeds thereof), (y) with the cash proceeds of any Disposition permitted
hereunder (or reimbursed in whole or in part with the Net Available Proceeds
thereof) and (z) pursuant to a Subsequent Acquisition.
"Capital Lease Obligations" means, for any Person, all
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obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
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Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" means, with respect to any Property of any
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Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Class" has the meaning assigned to such term in Section 1.03.
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"Closing Date" means the date upon which the initial extension of
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credit hereunder is made.
"Code" means the Internal Revenue Code of 1986, as amended from
----
time to time.
"Collateral Account" has the meaning assigned to such term in
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the Security Agreement.
"Commitment Percentage" means, with respect to any Lender, the
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ratio of (a) the aggregate amount of the Commitments of such Lender to (b) the
aggregate amount of the Commitments of all of the Lenders.
"Commitments" means, collectively, the Facility A Revolving
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Credit Commitments, the Facility B Term Loan Commitments, and the Facility C
Term Loan Commitments.
"Continue", "Continuation" and "Continued" refer to the
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continuation pursuant to Section 2.09 of a Eurodollar Loan from one Interest
Period to the next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" refer to a conversion
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pursuant to Section 2.09 of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Current Disposition" has the meaning set forth in
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Section 2.10(d).
"Debt Issuance" means any issuance or sale by the Borrower or any
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of its Subsidiaries after the date hereof of any debt securities, excluding,
however, any Indebtedness incurred pursuant to Section 9.07 other than
Section 9.07(c) to the extent that the proceeds thereof are not used to make
Subsequent Acquisitions.
"Debt Service" means, for any period, the sum, for the Borrower
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and its Subsidiaries (determined on a consolidated basis without duplication in
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accordance with GAAP), of (a) all regularly scheduled payments of principal of
any Indebtedness during such period, including the principal component of any
payments in respect of Capital Lease Obligations, but excluding any prepayments
made pursuant to Section 2.10 during such period plus (b) all Interest Expense
for such period.
"Default" means an Event of Default or an event that with notice
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or lapse of time or both would become an Event of Default.
"Delivery Date" has the meaning set forth in Section 9.04.
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"Disposition" means any sale, assignment, transfer or other
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disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person, excluding (a) any sale,
assignment, transfer or other disposition of any inventory or other Property
sold or disposed of in the ordinary course of business, (b) during any fiscal
year, the first $10,000,000 of sales of used equipment or other Property not
used in the business of the Borrower and its Subsidiaries, (c) any sale,
assignment, transfer or other disposition of any Property to the Borrower or a
Wholly Owned Subsidiary of the Borrower, (d) any property swap or exchange
entered into pursuant to the Marine World Agreements permitted under Section
9.05(e)(v) and (e) any sales permitted under Section 9.05(e)(vi).
"Disposition Investment" means, with respect to any Disposition,
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any promissory notes or other evidences of indebtedness or Investments received
by the Borrower or any of its Subsidiaries in connection with such Disposition.
"Dollar Equivalent" means, with respect to any Letter of Credit
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denominated in a Foreign Currency, the amount of Dollars that would be required
to purchase the aggregate undrawn face amount of such Letter of Credit in the
London foreign exchange market at approximately 11:00 a.m. London time for
delivery two Business Days later based upon the spot selling rate for such
Foreign Currency as determined by the Administrative Agent (or such Lender
designated by the Administrative Agent).
"Dollars" and "$" means lawful money of the United States of
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America.
"Domestic Subsidiary" means each Subsidiary of the Borrower that
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is organized under the laws of the United States of America or any political
subdivision thereof.
"EBITDA" means, for any period, the sum, for the Borrower and its
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Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined before interest
income or expense and extraordinary or unusual items (and excluding all barter
and trade transactions): (a) operating income (or loss) for such period (plus
----
cash received for such period from investments of the Borrower or any of its
Subsidiaries in partnerships or any Person for which the investment is accounted
for by the equity method), plus (b) depreciation, amortization and other
----
non-cash charges (to the extent deducted in determining operating income) for
such period. Notwithstanding the foregoing, (i) if during any period for which
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EBITDA is being determined the Borrower and its Subsidiaries shall have
consummated any acquisition or Disposition then, for all purposes of this
Agreement (other than for purposes of the definition of Excess Cash Flow),
EBITDA shall be determined on a pro forma basis as if such acquisition or
Disposition had been made or consummated on the first day of such period and
(ii) when determining EBITDA for any period on a pro forma basis as provided in
the preceding clause (i) ending after the consummation of any acquisition, there
shall be added (or subtracted) the respective amounts for such acquisition (and
any other acquisitions consummated prior to the last day of such period) set
forth (x) in the case of the Walibi Acquisition, in Schedule VIII opposite the
last day of such period and (y) in the case of any Subsequent Acquisition, in a
supplement to Schedule VIII agreed to at the time of such Subsequent Acquisition
pursuant to Section 9.05(e)(iii)(E).
"Environmental Claim" means, with respect to any Person, any
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written notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment, as
a result of any of the foregoing.
"Environmental Laws" means any and all present and future
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Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Rights" means, with respect to any Person, any
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subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
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1974, as amended from time to time.
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"ERISA Affiliate" means any corporation or trade or business that
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is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.
"ERISA Event" means any of the following events or conditions:
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(a) any reportable event, as defined in Section 4043(c) of ERISA
and the regulations issued thereunder, with respect to a Plan, as to which the
PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event (provided
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that a failure to meet the minimum funding standard of Section 412 of the Code
or Section 302 of ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section 412(m) of the Code
or Section 302(e) of ERISA, shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the Code); and any
request for a waiver under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any Plan or any action taken by the Borrower or an ERISA
Affiliate to terminate any Plan;
(c) the institution by the PBGC 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 Borrower 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;
(d) the complete or partial withdrawal from a Multiemployer Plan
by the Borrower or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the Borrower or
any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the loss
of tax-exempt status of the trust of which such Plan is a part if the Borrower
or an ERISA Affiliate fails to timely provide security to the Plan in accordance
with the provisions of such Sections.
-9-
"Eurodollar Base Rate" means, with respect to any Eurodollar Loan
--------------------
for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) reported on the date two Business Days
prior to the first day of such Interest Period on the Dow Xxxxx Markets Service
Page 3750 as the London Interbank Offered Rate for Dollar deposits having a term
comparable to such Interest Period and in an amount of $1,000,000 or more (or,
if said Page shall cease to be publicly available or if the information
contained on said Page, in the sole judgment of the Administrative Agent, shall
cease to accurately reflect such London Interbank Offered Rate, the Eurodollar
Base Rate means the rate reported by any publicly available source of similar
market data selected by the Administrative Agent that, in the sole judgment of
the Administrative Agent, accurately reflects such London Interbank Offered
Rate).
"Eurodollar Loans" means Loans that bear interest at rates based
----------------
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"Eurodollar Rate" means, for any Interest Period for any
---------------
Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Interest Period divided by 1 minus the Reserve
---------- -----
Requirement (if any) for such Interest Period.
"Event of Default" has the meaning assigned to such term in
----------------
Section 10.
"Excess Cash Flow" means, for any period, the excess of
----------------
(a) EBITDA for such period over (b) the sum of (i) the aggregate amount of Debt
----
Service for such period plus (ii) Capital Expenditures made during such period
----
(except for any such Capital Expenditures to the extent financed with the
proceeds of capital contributions or advances to the Borrower from Holdings
after consummation of the Premier Merger) plus (iii) the aggregate amount paid,
----
or required to be paid, in cash in respect of income taxes for such fiscal year.
"Excess Payment" has the meaning set forth in Section 6.08.
--------------
"Excess Funding Guarantor" has the meaning set forth in
------------------------
Section 6.08.
"Existing Credit Agreement" means the Amended and Restated Credit
-------------------------
Agreement dated as of January 31, 1997 among the Borrower, the lenders named
therein, The Bank of New York as Administrative Agent, Fleet Bank as
Documentation Agent and Banque Paribas as Co-Agent.
"Existing Parks" means those amusement and attraction parks
--------------
listed in Part A of Schedule IV.
"Facility A Revolving Credit Commitment" means, as to each
--------------------------------------
Revolving Credit Lender, the obligation of such Lender to make Revolving Credit
Loans, and to issue or participate in Letters of Credit pursuant to
Section 2.03, in an aggregate principal or face amount at any one time
-10-
outstanding up to but not exceeding the amount set forth opposite the name of
such Lender on Schedule I under the caption "Revolving Credit Commitment" or, in
the case of a Person that becomes a Revolving Credit Lender pursuant to an
assignment permitted under Section 12.06(b), as specified in the respective
instrument of assignment pursuant to which such assignment is effected (in each
case as the same may be reduced or increased pursuant to an assignment permitted
under Section 12.06(b), or reduced from time to time pursuant to Section 2.04 or
2.10). The original aggregate principal amount of the Facility A Revolving
Credit Commitments is $75,000,000.
"Facility A Revolving Credit Commitment Termination Date" means
-------------------------------------------------------
the fifth anniversary of the first Quarterly Date after the Closing Date.
"Facility A Revolving Credit Loans" means the loans provided for
---------------------------------
in Section 2.01(a), which may be Base Rate Loans and/or Eurodollar Loans.
"Facility B Term Loans" means the loans provided for in
---------------------
Section 2.01(b), which may be Base Rate Loans and/or Eurodollar Loans.
"Facility B Term Loan Commitment" means, as to each Facility B
-------------------------------
Term Loan Lender, the obligation of such Lender to make Facility B Term Loans in
an aggregate principal amount up to but not exceeding the amount set opposite
the name of such Lender on Schedule I under the caption "Facility B Term Loan
Commitment" or, in the case of a Person that becomes a Facility B Term Loan
Lender pursuant to an assignment permitted under Section 12.06(b), as specified
in the respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced from time to time pursuant to Section 2.04
or 2.10 or increased or reduced from time to time pursuant to assignments
permitted under Section 12.06(b)). The original aggregate principal amount of
the Facility B Term Loan Commitments is $100,000,000.
"Facility B Term Loan Commitment Termination Date" means the
------------------------------------------------
Syndication Completion Date (subject to the second sentence of Section 2.01(b)).
"Facility C Term Loans" means the loans provided for in
---------------------
Section 2.01(c), which may be Base Rate Loans and/or Eurodollar Loans.
"Facility C Term Loan Commitment" means, as to each Facility C
-------------------------------
Term Loan Lender, the obligation of such Lender to make Facility C Term Loans in
an aggregate principal amount up to but not exceeding the amount set opposite
the name of such Lender on Schedule I under the caption "Facility C Term Loan
Commitment" or, in the case of a Person that becomes a Facility C Term Loan
Lender pursuant to an assignment permitted under Section 12.06(b), as specified
in the respective instrument of alignment pursuant to which such assignment is
effected (as the same may be reduced from time to time pursuant to Section 2.04
or 2.10 or increased or reduced from time to time pursuant to assignments
permitted under Section 12.06(b)). The original aggregate principal amount of
the Facility C Term Loan Commitments is $125,000,000.
-11-
"Facility C Term Loan Commitment Termination Date" means the
------------------------------------------------
Syndication Completion Date.
"Federal Funds Rate" means, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
--------
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to the Administrative Agent on such Business
Day on such transactions as determined by the Administrative Agent.
"Fixed Charges" means, for any period, the sum of (a) Debt
-------------
Service for such period plus (b) the aggregate amount of all Capital
----
Expenditures made during such period (excluding (i) any such Capital
Expenditures to the extent financed with the proceeds of capital contributions
or advances to the Borrower from Holdings after consummation of the Premier
Merger and (ii) any Capital Expenditures made (x) during the period from and
after September 30, 1997 to and including September 29, 1998 in an aggregate
amount up to $75,000,000, (y) during the period from and after September 30,
1998 to and including September 29, 1999 in an aggregate amount up $50,000,000
and (z) during the period from and after September 30, 1999 to and including
September 29, 2000, in an aggregate amount up to $40,000,000) plus (c) the
----
aggregate amount paid, or required to be paid, in cash in respect of income
taxes for such fiscal period.
"Fixed Charges Coverage Ratio" means, as at any date, the ratio
----------------------------
of (a) EBITDA for the period of four consecutive fiscal quarters ending on or
most recently ended prior to such date to (b) the amount of Fixed Charges for
such period .
"Foreign Currency" means the currency of any country in which the
----------------
Borrower or any of its Subsidiaries operates a Park, so long as such currency is
freely transferable and dealt with in the London foreign exchange market.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
------------------
Subsidiary.
"GAAP" means generally accepted accounting principles applied on
----
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a), are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Guarantee" means a guarantee, an indorsement, a contingent
---------
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
-12-
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as verbs have
the correlative meanings.
"Guarantee Assumption Agreement" means a Guarantee Assumption
------------------------------
Agreement substantially in the form of Exhibit C by an entity that, pursuant to
Section 9.15(a), is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Hazardous Material" means any chemical or other material or
------------------
substance which is now or hereafter prohibited, limited or otherwise regulated
in any way under any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
For purposes hereof, the "credit exposure" at any time of any Person under an
Hedging Agreement to which such Person is a party shall be determined at such
time in accordance with the standard methods of calculating credit exposure
under similar arrangements as prescribed from time to time by the Administrative
Agent, taking into account potential interest rate movements and the respective
termination provisions and notional principal amount and term of such Hedging
Agreement.
"Holdings" means Premier Parks Holdings Corporation, a Delaware
--------
corporation and direct wholly owned subsidiary of the Borrower that upon
consummation of the Premier Merger will become the parent company of the
Borrower and will at such time be renamed "Premier Parks Inc.".
"Inactive Subsidiary" means any Subsidiary of the Borrower that
-------------------
(a) has aggregate assets with a value not in excess of $5,000 and (b) conducts
no business or other operations.
"Indebtedness" means, for any Person, without duplication:
------------
(a) obligations created, issued or incurred by such Person for borrowed money
(whether by loan, the issuance and sale of debt securities or the sale of
Property to another Person subject to an understanding or agreement, contingent
or otherwise, to repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business so
long as such trade accounts payable are payable within 180 days of the date the
respective goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such Person,
-13-
whether or not the respective indebtedness so secured has been assumed by such
Person; (d) obligations of such Person in respect of letters of credit or
similar instruments (including negotiable instruments) issued or accepted by
banks and other financial institutions for account of such Person; (e) Capital
Lease Obligations of such Person; and (f) Indebtedness of others Guaranteed by
such Person. The Indebtedness of any Person shall include the Indebtedness of
any partnership in which such Person is a general partner to the extent such
Indebtedness is recourse, provided that if such Person's liability for such
--------
Indebtedness is contractually limited, only such Person's share thereof shall be
so included. Anything herein to the contrary notwithstanding, (i) obligations
under Hedging Agreements and (ii) obligations with respect to the payment of
taxes, fees, costs and expenses, Capital Expenditures and other payments
required to be made pursuant to the Marine World Agreements shall not constitute
Indebtedness.
"Information Memorandum" means the Confidential Information
----------------------
Memorandum dated March 1998 prepared by the Borrower in connection with the
syndication of the Commitments hereunder.
"Interest Coverage Ratio" means, as at any date, the ratio of
-----------------------
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum, for the
----------------
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations but excluding any
capitalized financing fees paid during such period that are to be charged to
future periods) accrued or capitalized during such period (whether or not
actually paid during such period) plus (b) the net amount payable (or minus the
---- -----
net amount receivable) under Hedging Agreements during such period (whether or
not actually paid or received during such period) minus (c) (to the extent not
-----
already deducted in computing Interest Expense) the aggregate amount of interest
income for such period. Notwithstanding the foregoing, if during any period for
which Interest Expense is being determined the Borrower shall have consummated
any acquisition or Disposition then, for all purposes of this Agreement (other
than for purposes of the definition of Excess Cash Flow), Interest Expense shall
be determined on a pro forma basis as if such acquisition or Disposition (and
any Indebtedness incurred by the Borrower or any of its Subsidiaries in
connection with such acquisition or repaid as a result of such Disposition) had
been made or consummated (and such Indebtedness incurred or repaid) on the first
day of such period and as if the interest rate applicable to any incremental
Indebtedness of the Borrower and its Subsidiaries is equal to the interest rate
applicable to Indebtedness of the Borrower and its Subsidiaries in fact
outstanding during such period.
"Interest Period" means, for any Eurodollar Loan, each period
---------------
commencing on the date such Eurodollar Loan is made or Converted from a Loan of
another Type or (in the event of a Continuation) the last day of the next
preceding Interest Period for such Loan and (subject to the provisions of
Section 2.01(d)) ending on the numerically corresponding day in the first,
-14-
second, third or sixth calendar month thereafter (or such shorter periods as,
prior to the date referred to in Section 2.01(d), shall be agreed to by each
Lender), as the Borrower may select as provided in Section 4.05, except that
each Interest Period that commences on the last Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall (unless each of the Lenders shall
otherwise agree) end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) each Interest Period that
would otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and
(ii) notwithstanding clause (i) above, no Interest Period shall (except as
otherwise provided in the first sentence of this definition) have a duration of
less than one month and, if the Interest Period for any Eurodollar Loan would
otherwise be a shorter period, such Loan shall not be available hereunder for
such period.
"Investment" means, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such deposit with, or advance, loan or other extension of credit to, any
other Person (including the purchase of Property from another Person subject to
an understanding or agreement, contingent or otherwise, to resell such Property
to such Person), but excluding any such advance, loan or extension of credit
having a stated term not exceeding 90 days arising in connection with the sale
of inventory, supplies or patron services by such Person in the ordinary course
of business, and excluding also any deposit made by such Person as an advance
payment in respect of a Capital Expenditure (to the extent the making of such
Capital Expenditure will not result in a violation of any of the provisions of
Section 9.10); (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; or (d) the entering into of any Hedging Agreement.
"Issuing Lender" means LCPI as the issuer of Letters of Credit
--------------
under Section 2.03, together with its successors and assigns in such capacity.
"LCPI" means Xxxxxx Commercial Paper Inc., a Delaware
----
corporation.
"Letter of Credit" has the meaning assigned to such term in
----------------
Section 2.03.
"Letter of Credit Documents" means, with respect to any Letter of
--------------------------
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
-15-
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Letter of Credit Interest" means, for each Lender, such Lender's
-------------------------
participation interest (or, in the case of the Issuing Lender, the Issuing
Lender's retained interest) in the Issuing Lender's liability under Letters of
Credit and such Lender's rights and interests in Reimbursement Obligations and
fees, interest and other amounts payable in connection with Letters of Credit
and Reimbursement Obligations.
"Letter of Credit Liability" means, without duplication, at any
--------------------------
time and in respect of any Letter of Credit, the sum of (a) the Undrawn Face
Amount plus (b) the aggregate unpaid principal amount of all Reimbursement
----
Obligations of the Borrower at such time due and payable in respect of all
drawings made under such Letter of Credit. For purposes of this Agreement, a
Lender (other than the Issuing Lender) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the related
Letter of Credit under Section 2.03, and the Issuing Lender shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to the acquisition by the
Lenders other than the Issuing Lender of their participation interests under
said Section 2.03.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
--------------
Debt as at such date to (b) EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to such date.
"Lien" means, with respect to any Property, any mortgage, lien,
----
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Loan Documents" means, collectively, this Agreement, the Notes,
--------------
the Letter of Credit Documents and the Security Documents.
"Loans" means, collectively, the Facility A Revolving Credit
-----
Loans, the Facility B Term Loans and the Facility C Term Loans.
"Majority Lenders" means, at any time, Lenders having at least
----------------
51% of the sum of (a) the aggregate amount of the Facility A Revolving Credit
Commitments at such time (or, if the Facility A Revolving Credit Commitments
shall have terminated, the sum of (i) the aggregate unpaid principal amount of
the Facility A Revolving Credit Loans at such time plus (ii) the aggregate
----
amount of all Letter of Credit Liabilities at such time) plus (b) the aggregate
----
amount of the Facility B Term Loan Commitments at such time (or, if the Facility
-16-
B Term Loan Commitments shall have terminated, the aggregate outstanding
principal amount of the Facility B Term Loans at such time) plus (c) the
----
aggregate amount of the Facility C Term Loan Commitments at such time (or, if
the Facility C Term Loan Commitments shall have terminated, the aggregate
outstanding principal amount of the Facility C Term Loans at such time).
"Marine World Agreements" means, collectively, (a) the Parcel
-----------------------
Lease dated as of November 7, 1997 between Marine World Joint Powers Authority
("Authority"), as landlord, and Park Management Corp. ("Tenant"), as tenant, a
--------- ------
Memorandum of which was recorded on November 10, 1997, Series No. 97-76697,
official records; (b) Reciprocal Easement Agreement dated as of November 7, 1997
between Authority and Tenant; (c) Revenue Sharing Agreement dated as of
November 7, 1997 by and among Authority, Tenant and the Redevelopment Agency of
the City of Vallejo ("Agency"); (d) 1997 Management Agreement Relating to Marine
------
World entered into as of February 1, 1997 between the Authority and Tenant, as
amended by a side letter dated November 7, 1997; and (e) Purchase Option
Agreement dated as of August 29, 1997 among the City of Vallejo, the Authority,
the Agency and Tenant, together with any and all documents delivered pursuant
thereto or in connection therewith, as the same shall, subject to Section 9.16,
be modified and supplemented and in effect from time to time.
"Margin Stock" means "margin stock" within the meaning of
------------
Regulations G, T, U and X.
"Material Adverse Effect" means a material adverse effect on
-----------------------
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Borrower and its Subsidiaries taken as a
whole, (b) the validity or enforceability of any of the Loan Documents, (c) the
rights and remedies of the Lenders and the Administrative Agent under any of the
Loan Documents or (d) the timely payment of the principal of or interest on the
Loans, Reimbursement Obligations or other amounts payable in connection
therewith.
"Multiemployer Plan" means a multiemployer plan defined as such
------------------
in Section 3(37) of ERISA to which contributions have been made by the Borrower
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" means:
----------------------
(i) in the case of any Disposition, the amount of Net Cash
Payments received by the Borrower or any Subsidiary in connection
with such Disposition;
(ii) in the case of any Casualty Event, the aggregate
amount of proceeds of insurance, condemnation awards and other
compensation received by the Borrower and its Subsidiaries in
respect of such Casualty Event net of (A) reasonable expenses
incurred by the Borrower and its Subsidiaries in connection
therewith and (B) contractually required repayments of
Indebtedness consisting of Capital Lease Obligations or Purchase
Money Indebtedness permitted hereunder and covering the
respective Property that is the subject of such Casualty Event,
-17-
and any income and transfer taxes payable by the Borrower or any
of its Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Debt Issuance, the aggregate
amount of all cash received by the Borrower and its Subsidiaries
in respect of such Debt Issuance net of reasonable expenses
incurred by the Borrower and its Subsidiaries in connection
therewith.
"Net Cash Payments" means, with respect to any Disposition, the
-----------------
aggregate amount of all cash payments received by the Borrower and its
Subsidiaries directly or indirectly in connection with such Disposition, whether
at the time of such Disposition or after such Disposition under deferred payment
arrangements or Investments entered into or received in connection with such
Disposition (including, without limitation, Disposition Investments); provided
--------
that (a) Net Cash Payments shall be net of (i) the amount of any legal, title,
transfer and recording tax expenses, commissions and other fees and expenses
payable by the Borrower and its Subsidiaries in connection with such Disposition
and (ii) any Federal, state and local income or other taxes estimated to be
payable by the Borrower and its Subsidiaries as a result of such Disposition,
but only to the extent that on the date of such Disposition the Borrower
delivers a certificate of a Responsible Officer of the Borrower setting forth a
calculation of the amount of such estimated taxes; and (b) Net Cash Payments
shall be net of any contractually required repayments of Indebtedness consisting
of Capital Lease Obligations or Purchase Money Indebtedness permitted hereunder
and covering the respective Property that is the subject of such Disposition.
"New Senior Notes" means Indebtedness of the Borrower (which may
----------------
be Guaranteed by the Subsidiaries of the Borrower) evidenced by notes issued
after the date hereof in accordance with the provisions of Section 9.07(e) that
constitute senior Indebtedness of the Borrower (i.e. do not constitute
Subordinated Indebtedness).
"1995 Senior Notes" means the 12% Senior Notes due 2003 issued by
-----------------
the Borrower pursuant to the 1995 Senior Notes Indenture.
"1995 Senior Notes Indenture" means the Indenture dated as of
---------------------------
August 15, 1995 between the Borrower and The Chase Manhattan Bank (as successor
to United States Trust Company of New York), as trustee, as the same has
heretofore been modified and supplemented pursuant to a First Supplemental
Indenture dated as of November 9, 1995, a Second Supplemental Indenture dated as
of January 21, 1997, a Supplemental Indenture dated as of February 6, 1997, a
Fourth Supplemental Indenture dated as of July 31, 1997, and a Fifth
Supplemental Indenture dated as of January 30, 1998, as the same shall, subject
to Section 9.16, be further modified and supplemented and in effect from time to
time.
"1997 Senior Notes" means the 9 3/4% Senior Notes due 2007 issued
-----------------
by the Borrower pursuant to the 1997 Senior Notes Indenture.
-18-
"1997 Senior Notes Indenture" means the Indenture dated as of
---------------------------
January 15, 1997, between the Borrower and The Bank of New York, as trustee, as
the same has heretofore been modified and supplemented pursuant to a
Supplemental Indenture dated as of February 6, 1997, a Second Supplemental
Indenture dated as of July 31, 1997 and a Third Supplemental Indenture dated as
of January 30, 1998, as the same shall, subject to Section 9.16, be modified and
supplemented and in effect from time to time.
"Notes" means the promissory notes provided for by Section 2.08
-----
and all promissory notes delivered in substitution or exchange therefor, in each
case as the same shall be modified and supplemented and in effect from time to
time.
"Obligor" has the meaning set forth in the preamble.
-------
"Park" means, collectively, the Existing Parks and any other
----
amusement or attraction park acquired by any of the Obligors after the date
hereof.
"Payor" has the meaning set forth in Section 4.06.
-----
"PBGC" means the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
"Peril" has the meaning set forth in Section 9.04.
-----
"Permitted Investments" means: (a) direct obligations of the
---------------------
United States of America, or of any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than one year from the date of
acquisition thereof; (b) certificates of deposit, time deposits and money market
deposit accounts issued by any bank or trust company organized under the laws of
the United States of America, any state thereof or any other country which is a
member of the Organization for Economic Cooperation and Development, in each
case having capital, surplus and undivided profits of at least $500,000,000,
maturing not more than one year from the date of acquisition thereof;
(c) securities either rated or issued by corporations that have a rating of, A-1
or better or P-1 by Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., or Xxxxx'x Investors Services, Inc., respectively,
maturing not more than one year from the date of acquisition thereof; and
(d) fully collateralized repurchase agreements with a term of not more than one
year for securities described in clause (a) above and entered into with either
financial institutions satisfying the criteria described in clause (b) above or
primary dealers in U.S. Government securities; in each case so long as the same
(x) provide for the payment of principal and interest (and not principal alone
or interest alone) and (y) are not subject to any contingency regarding the
payment of principal or interest.
"Permitted Reinvestment Transaction" means either (a) a
----------------------------------
Subsequent Acquisition permitted under Section 9.05(e)(iii) or a Capital
Expenditure permitted under Section 9.05(b), or (b) a reimbursement of the
-19-
Borrower or any Subsidiary for monies expended by the Borrower or a Subsidiary
within the previous 180 days with respect to any such acquisition or Capital
Expenditure.
"Person" means any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" means an employee benefit or other plan established or
----
maintained by the Borrower or any ERISA Affiliate and that is covered by
Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" means a rate per annum equal to 2% plus the
-----------------
Base Rate as in effect from time to time plus the Applicable Rate for Base Rate
Loans, provided that, with respect to principal of a Eurodollar Loan that shall
--------
become due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
and, thereafter, the rate provided for above in this definition.
"Premier Merger" has the meaning set forth in Section 9.05(e)
--------------
(iv).
"Prime Rate" means a rate of interest per annum equal to the rate
----------
of interest publicly announced in New York City by Citibank, N.A., as published
in the Wall Street Journal, from time to time as its prime commercial lending
rate, such rate to be adjusted automatically (without notice) on the effective
date of any change in such publicly announced rate.
"Principal Office" means, initially, the office of the
----------------
Administrative Agent set forth on the signature pages hereof or such other
office that the Administrative Agent may specify to the Lenders and the Borrower
from time to time.
"Principal Payment Dates" shall mean, with respect to the Term
-----------------------
Loans, each Quarterly Date during the period from and including the Quarterly
Date falling on or nearest to June 30, 1998, through and including the Quarterly
Date falling on or nearest to March 31, 2006.
"Pro Rata Share" has the meaning set forth in Section 6.08.
--------------
"Property" means any right or interest in or to property of any
--------
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchase Money Indebtedness" means Indebtedness (i) consisting
---------------------------
of the deferred purchase price of Property, conditional sale obligations under
any title retention agreement and other purchase money obligations, in each case
where the maturity of such Indebtedness does not exceed the anticipated useful
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life of the asset being financed, and (ii) incurred to finance the acquisition
by the Borrower or a Subsidiary of such asset, including additions and
improvements; provided, however, that any Lien arising in connection with any
--------
such Indebtedness shall be limited to the specified asset being financed or, in
the case of real Property and fixtures, including additions and improvements,
the real Property on which such asset is attached; and provided further, that
such Indebtedness is incurred within 180 days after such acquisition, addition
or improvement by the Borrower or Subsidiary of such asset.
"Quarterly Dates" means the last Business Day of March, June,
---------------
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Regulations A, D, G, T, U and X" means, respectively,
-------------------------------
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" means, with respect to any Lender, any change
-----------------
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Reimbursement Obligation" means, at any date, the obligations of
------------------------
the Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" means any release, threatened release, spill, emission,
-------
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata.
"Required Payment" has the meaning set forth in Section 4.06.
----------------
"Reserve Requirement" means, for any Interest Period for any
-------------------
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall include any other reserves required to be maintained by such
member banks by reason of any Regulatory Change with respect to (i) any category
of liabilities that includes deposits by reference to which the Eurodollar Base
Rate for any Interest Period for any Eurodollar Loans is to be determined as
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provided in the definition of "Eurodollar Base Rate" in this Section 1.01 or
(ii) any category of extensions of credit or other assets that includes
Eurodollar Loans.
"Reserved Commitment Amount" has the meaning assigned to such
--------------------------
term in the second paragraph of Section 2.01(a).
"Responsible Officer" means, as to any Person, the chief
-------------------
executive officer, president, any vice president, chief financial officer or
secretary of such person.
"Restricted Payment" means dividends (in cash, Property or
------------------
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower or any of its Subsidiaries), but
excluding dividends payable solely in shares of common stock of the Borrower.
"Security Agreement" means a Security Agreement substantially in
------------------
the form of Exhibit B between the Borrower, the Subsidiaries of the Borrower
party thereto and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Security Documents" means, collectively, the Security Agreement
------------------
and all Uniform Commercial Code financing statements required by any of such
instruments to be filed with respect to the security interests in personal
Property and fixtures created pursuant thereto.
"Senior Notes" means, collectively, the 1995 Senior Notes, the
------------
1997 Senior Notes and the New Senior Notes.
"Senior Notes Indentures" means, collectively, the 1995 Senior
-----------------------
Notes Indenture, the 1997 Senior Notes Indenture and any indenture or other
agreement relating to, evidencing or pursuant to which the New Senior Notes are
issued.
"Senior Secured Debt" means, as at any date, the aggregate amount
-------------------
of Indebtedness of the Borrower and its Subsidiaries at such date (determined on
a consolidated basis without duplication in accordance with GAAP) that is not
Subordinated Indebtedness and is secured by the Property of the Borrower and/or
its Subsidiaries.
"Senior Secured Debt Ratio" means, at any date, the ratio of
-------------------------
(a) Senior Secured Debt as at such date to (b) EBITDA for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to such
date.
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"Subordinated Indebtedness" means Indebtedness of the Borrower
-------------------------
incurred in accordance with Section 9.11.
"Subsequent Acquisition" means any acquisition permitted under
----------------------
Section 9.05(e)(iii).
"Subsequent Acquisition Agreements" means each agreement pursuant
---------------------------------
to which a Subsequent Acquisition shall be consummated, as the same shall,
subject to Section 9.16, be modified and supplemented and in effect from time to
time.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, limited liability company or other entity domestic or foreign of
which at least a majority of the securities or other ownership interests having
by the terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
Notwithstanding anything herein to the contrary, Walibi shall be a Subsidiary
from and after the consummation of the Walibi Acquisition for all purposes of
this Agreement.
"Subsidiary Guarantor" has the meaning set forth in the preamble.
--------------------
"Syndication Completion Date" means the date reasonably
---------------------------
determined by the Arranger (which shall be promptly notified to the Borrower) on
which the general syndication of the credit facilities provided for in this
Agreement has been completed.
"Tender Offer" means the tender offer to be launched upon
------------
consummation of the Walibi Acquisition to acquire the outstanding shares of
capital stock of Walibi not acquired pursuant to the Walibi Acquisition
Agreement.
"Term Loan" means, collectively, the Facility B Term Loans and
---------
Facility C Term Loans.
"Total Debt" means, as at any date, the aggregate amount of all
----------
Indebtedness of the Borrower and its Subsidiaries at such date (determined on a
consolidated basis without duplication in accordance with GAAP).
"Type" has the meaning assigned to such term in Section 1.03.
----
"Undrawn Face Amount" means, as at any date, the sum of (i) the
-------------------
Dollar Equivalent plus (ii) with respect to any Letter of Credit denominated in
----
Dollars, the aggregate undrawn face amount of such Letter of Credit on such
date.
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"U.S. Person" has the meaning set forth in Section 5.07.
-----------
"Walibi" means Walibi S.A., a Belgian corporation.
------
"Walibi Acquisition" means the acquisition by the Borrower of
------------------
Walibi pursuant to the Walibi Acquisition Agreement.
"Walibi Acquisition Agreement" means the Stock Purchase Agreement
----------------------------
dated as of December 15, 1997 among the Borrower and Centrag S.A., Xxxxxx N.V.
and Westkoi N.V., each a Belgian corporation.
"Wholly Owned Subsidiary" means, with respect to any Person, any
-----------------------
corporation, partnership, limited liability company or other entity of which all
of the equity securities or other ownership interests (other than, in the case
of a corporation, directors', qualifying shares or equity interests held by
foreign nationals, in each case to the extent mandated by applicable law) are
directly or indirectly owned or controlled by such Person or one or more Wholly
Owned Subsidiaries of such Person.
1.02. Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in paragraph (b) of this
Section 1.02) be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which, prior
to the delivery of the first financial statements under Section 9.01, means the
audited financial statements as at December 31, 1997 referred to in
Section 8.02). All calculations made for the purposes of determining compliance
with this Agreement shall (except as otherwise expressly provided herein) be
made by application of generally accepted accounting principles applied on a
basis consistent with those used in the preparation of the latest annual or
quarterly financial statements furnished to the Lenders pursuant to Section 9.01
(or, prior to the delivery of the first financial statements under Section 9.01,
used in the preparation of the audited financial statements as at December 31,
1997 referred to in Section 8.02) unless (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements or (ii) the Majority Lenders shall so object in writing
within 30 days after delivery of such financial statements, in either of which
events such calculations shall be made on a basis consistent with those used in
the preparation of the latest financial statements as to which such objection
shall not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 9.01, means the audited financial
statements referred to in Section 8.02).
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(b) The Borrower shall deliver to the Lenders at the same time as
the delivery of any annual or quarterly financial statement under Section 9.01
(i) a description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) of this Section 1.02 and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9, the Borrower will not
change the last day of its fiscal year from December 31, or the last days of the
first three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30, respectively.
1.03. Classes and Types of Loans. Loans hereunder are
--------------------------
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Facility A Revolving
Credit Loan or a Facility B Term Loan, or a Facility C Term Loan each of which
constitutes a Class. The "Type" of a Loan refers to whether such Loan is a Base
Rate Loan or a Eurodollar Loan, each of which constitutes a Type. Loans may be
identified by both Class and Type.
1.04. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Sections, Exhibits
and Schedules shall be construed to refer to Sections of, and Exhibits and
Schedules to, this Agreement and (e) the word "asset" shall be construed to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts, contract rights and real property.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Loans.
-----
(a) Facility A Revolving Credit Loans. Each Facility A Revolving
---------------------------------
Credit Lender severally agrees, on the terms and conditions of this Agreement,
to make loans to the Borrower in Dollars during the period from and including
-25-
the Closing Date to but not including the Facility A Revolving Credit Commitment
Termination Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of the Facility A Revolving Credit Commitment of
such Lender as in effect from time to time (such Loans being herein called
"Facility A Revolving Credit Loans"), provided that in no event shall the
--------------------------------- --------
aggregate outstanding principal amount of all Facility A Revolving Credit Loans,
together with the aggregate outstanding amount of all Letter of Credit
Liabilities, exceed the aggregate amount of the Facility A Revolving Credit
Commitments as in effect from time to time. Subject to the terms and conditions
of this Agreement, during such period the Borrower may borrow, repay and
reborrow the amount of the Facility A Revolving Credit Commitments by means of
Base Rate Loans and Eurodollar Loans and may Convert Facility A Revolving Credit
Loans of one Type into Facility A Revolving Credit Loans of another Type (as
provided in Section 2.09) or Continue Facility A Revolving Credit Loans of one
Type as Facility A Revolving Credit Loans of the same Type (as provided in
Section 2.09). Anything herein to the contrary notwithstanding, upon unanimous
consent of the Lenders, the Borrower may request and the Lenders may make
Facility A Revolving Credit Loans to the Borrower on the Closing Date regardless
of whether any Facility B Term Loans or Facility C Term Loans shall also have
been made on the Closing Date.
If in the event that, as contemplated by Section 2.10(e), the
Borrower shall prepay Facility A Revolving Credit Loans from the proceeds of a
Disposition, then an amount of Facility A Revolving Credit Commitments equal to
the amount of such prepayment (herein the "Reserved Commitment Amount") shall be
--------------------------
reserved and shall not be available for borrowings hereunder except and to the
extent that the proceeds of such borrowings are to be applied to a Permitted
Reinvestment Transaction. The Borrower agrees, upon the occasion of any
borrowing of Facility A Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative
Agent in writing of such fact at the time of such borrowing, identifying the
portion of such borrowing that is to constitute such utilization and the reduced
Reserved Commitment Amount to be in effect after giving effect to such borrowing
(and the Reserved Commitment Amount shall be automatically reduced at the time
of such borrowing by an amount equal to such portion of such borrowing).
(b) Facility B Term Loans. Each Facility B Lender severally
---------------------
agrees, on the terms and conditions of this Agreement, to make two term loans to
the Borrower in Dollars during the period from and including the Closing Date to
and including the Facility B Term Loan Commitment Termination Date in an
aggregate principal amount up to but not exceeding the amount of the Facility B
Term Loan Commitment of such Lender (such Loans being herein called the
"Facility B Term Loans"). Notwithstanding the foregoing, on or prior to the
---------------------
Syndication Completion Date the Borrower shall borrow the maximum amount of the
Facility B Term Loans that it is permitted to incur under the Senior Notes
Indentures without regard to the provisions of Section 4.03(b) thereof (less
$1,000,000), and to the extent the Borrower shall borrow less than the full
amount of the Facility B Term Loan Commitments the remainder shall be available
to be drawn, in one or more borrowings, at any time on or prior to May 15, 1998.
-26-
Notwithstanding anything herein to the contrary, no Facility B Term Loan shall
be made until the full amount of the Facility C Term Loan Commitments shall have
been used.
(c) Facility C Term Loans. Each Facility C Lender severally
---------------------
agrees, on the terms and conditions of this Agreement, to make a term loan to
the Borrower in Dollars during the period from and including the Closing Date to
and including the Facility C Term Loan Commitment Termination Date in an
aggregate principal amount up to but not exceeding the amount of the Facility C
Term Loan Commitment of such Lender (such Loans being herein called the
"Facility C Term Loans").
---------------------
(d) Limit on Eurodollar Loans. No more than ten separate Interest
-------------------------
Periods in respect of Eurodollar Loans of a Class from each Lender may be
outstanding at any one time.
2.02. Borrowings. The Borrower shall give the Administrative
----------
Agent notice of each borrowing hereunder as provided in Section 4.05. Not later
than 1:00 p.m. New York time on the date specified for each borrowing hereunder,
each Lender shall make available its Commitment Percentage of the amount of the
Loan or Loans to be made on such date to the Administrative Agent at the
Principal Office in Dollars in immediately available funds, for account of the
Borrower. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Borrower by
depositing the same, in immediately available funds, in an account of the
Borrower at a bank in New York designated by the Borrower from time to time.
2.03. Letters of Credit. Subject to the terms and conditions of
-----------------
this Agreement, the Facility A Revolving Credit Commitments may be utilized,
upon the request of the Borrower in addition to the Facility A Revolving Credit
Loans provided for by Section 2.01(a), by the issuance by the Issuing Lender of
letters of credit (collectively, "Letters of Credit") for account of the
-----------------
Borrower and in support of an obligation of the Borrower or any of its
Subsidiaries (as specified by the Borrower), provided that in no event shall
--------
(i) the aggregate outstanding amount of all Letter of Credit Liabilities,
together with the aggregate outstanding principal amount of the Facility A
Revolving Credit Loans, exceed the aggregate amount of the Facility A Revolving
Credit Commitments as in effect from time to time, (ii) the outstanding
aggregate amount of all Letter of Credit Liabilities exceed (x) $50,000,000
until completion of the Tender Offer or (y) $25,000,000 at all times thereafter
and (iii) the expiration date of any Letter of Credit extend beyond the earlier
of the Facility A Revolving Credit Commitment Termination Date and the date
fifteen months following the issuance of such Letter of Credit, except that an
automatic renewal provision in a Letter of Credit extending such Letter of
Credit (unless notice by the Issuing Lender is otherwise given) to a date not
later than the date fifteen months following the date of such extension (but not
in any event to a date later than the Facility A Revolving Credit Commitment
Termination Date), shall be permitted. The following additional provisions shall
apply to Letters of Credit:
(a) The Borrower shall give the Administrative Agent at least
five Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 30 days
-27-
preceding the Facility A Revolving Credit Commitment Termination Date)
each Letter of Credit is to be issued and describing in reasonable
detail the proposed terms of such Letter of Credit (including the
beneficiary thereof) and the nature of the transactions or obligations
proposed to be supported thereby (including whether such Letter of
Credit is to be a commercial letter of credit or a standby letter of
credit). Upon receipt of any such notice, the Administrative Agent shall
advise the Issuing Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by
the Issuing Lender of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Facility A Revolving
Credit Commitment of each Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's
Commitment Percentage of the then Undrawn Face Amount of such Letter of
Credit. Each Lender (other than the Issuing Lender) agrees that, upon
the issuance of any Letter of Credit hereunder, it shall automatically
acquire a participation in the Issuing Lender's liability under such
Letter of Credit in an amount equal to such Lender's Commitment
Percentage of such liability, and each Lender (other than the Issuing
Lender) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Lender to pay and discharge
when due, its Commitment Percentage of the Issuing Lender's liability
under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment under such Letter of Credit, the Issuing Lender
shall promptly notify the Borrower (through the Administrative Agent) of
the amount to be paid by the Issuing Lender as a result of such demand
and the date on which payment is to be made by the Issuing Lender to
such beneficiary in respect of such demand. Notwithstanding the identity
of the account party of any Letter of Credit, the Borrower hereby
unconditionally agrees to pay and reimburse the Administrative Agent for
account of the Issuing Lender for the amount of each demand for payment
under such Letter of Credit that is in substantial compliance with the
provisions of such Letter of Credit at or prior to the date on which
payment is to be made by the Issuing Lender to the beneficiary
thereunder, without presentment, demand, protest or other formalities of
any kind.
(d) Forthwith upon its receipt of a notice referred to in
paragraph (c) of this Section 2.03, the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow
hereunder to finance its obligation to reimburse the Issuing Lender for
the amount of the related demand for payment and, if it does, the
Borrower shall submit a notice of such borrowing as provided in
Section 4.05.
(e) Each Lender (other than the Issuing Lender) shall pay to the
Administrative Agent for account of the Issuing Lender at the Principal
Office in Dollars and in immediately available funds, the amount of such
Lender's Commitment Percentage of any payment under a Letter of Credit
upon notice by the Issuing Lender (through the Administrative Agent) to
-28-
such Lender requesting such payment and specifying such amount; provided
--------
that, with respect to any Letter of Credit denominated in a Foreign
Currency, the amount payable by such Lender shall be equal to the Dollar
Equivalent of the amount of such Lender's Commitment Percentage of any
payment under such Letter of Credit as determined on the date of such
payment. Each such Lender's obligation to make such payment to the
Administrative Agent for account of the Issuing Lender under this
paragraph (e), and the Issuing Lender's right to receive the same, shall
be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of
any other Lender to make its payment under this paragraph (e), the
financial condition of the Borrower (or any other account party), the
existence of any Default or the termination of the Commitments. Each
such payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender shall
default in its obligation to make any such payment to the Administrative
Agent for account of the Issuing Lender, for so long as such default
shall continue the Administrative Agent may at the request of the
Issuing Lender withhold from any payments received by the Administrative
Agent under this Agreement or any Note for account of such Lender the
amount so in default and, to the extent so withheld, pay the same to the
Issuing Lender in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Lender to the Issuing
Lender pursuant to paragraph (e) above in respect of any Letter of
Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Lender or such
Lender, acquire (i) a participation in an amount equal to such payment
in the Reimbursement Obligation owing to the Issuing Lender by the
Borrower hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (ii) a participation in a percentage equal to
such Lender's Commitment Percentage in any interest or other amounts
payable by the Borrower hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Issuing Lender
pursuant to paragraph (g) of this Section 2.03). Upon receipt by the
Issuing Lender from or for account of the Borrower of any payment in
respect of any Reimbursement Obligation or any such interest or other
amount (including by way of setoff or application of proceeds of any
collateral security) the Issuing Lender shall promptly pay to the
Administrative Agent for account of each Lender entitled thereto, such
Lender's Commitment Percentage of such payment, each such payment by the
Issuing Lender to be made in the same money and funds in which received
by the Issuing Lender. In the event any payment received by the Issuing
Lender and so paid to the Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Lender, each Lender shall, upon the
request of the Issuing Lender (through the Administrative Agent), repay
to the Issuing Lender (through the Administrative Agent) the amount of
such payment paid to such Lender, with interest at the rate specified in
paragraph (j) of this Section 2.03.
(g) The Borrower shall pay to the Administrative Agent for
account of each Lender (ratably in accordance with their respective
-00-
Xxxxxxxxxx Xxxxxxxxxxx) a letter of credit fee in respect of each Letter
of Credit in an amount per annum equal to the Applicable Rate then in
effect in respect of Eurodollar Loans of the daily average Undrawn Face
Amount of such Letter of Credit for the period from and including the
date of issuance of such Letter of Credit (i) in the case of a Letter of
Credit that expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of Credit that is drawn
in full or is otherwise terminated other than on the stated expiration
date of such Letter of Credit, to but excluding the date such Letter of
Credit is drawn in full or is terminated (such fee to be non-refundable,
to be paid in arrears on each Quarterly Date and on the Commitment
Termination Date and to be calculated for any day after giving effect to
any payments made under such Letter of Credit on such day).
In addition, the Borrower shall pay to the Administrative Agent
for account of the Issuing Lender a fronting fee in respect of each
Letter of Credit in an amount equal to 1/4 of 1% per annum of the daily
average Undrawn Face Amount of such Letter of Credit for the period from
and including the date of issuance of such Letter of Credit (i) in the
case of a Letter of Credit that expires in accordance with its terms, to
and including such expiration date and (ii) in the case of a Letter of
Credit that is drawn in full or is otherwise terminated other than on
the stated expiration date of such Letter of Credit, to but excluding
the date such Letter of Credit is drawn in full or is terminated (such
fee to be non-refundable, to be paid in arrears on each Quarterly Date
and on the Commitment Termination Date and to be calculated for any day
after giving effect to any payments made under such Letter of Credit on
such day) plus all commissions, charges, costs and expenses in the
amounts customarily charged by the Issuing Lender from time to time in
like circumstances with respect to the issuance of each Letter of Credit
and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the
Issuing Lender shall deliver (through the Administrative Agent) to each
Lender and the Borrower a notice describing the aggregate amount of all
Letters of Credit outstanding at the end of such month. Upon the request
of any Lender from time to time, the Issuing Lender shall deliver any
other information reasonably requested by such Lender with respect to
each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 7,
be subject to the conditions precedent that (i) such Letter of Credit
shall be in such form, contain such terms and support such transactions
as shall be satisfactory to the Issuing Lender consistent with its then
current practices and procedures with respect to letters of credit of
the same type (except that in no event shall any Letter of Credit
provide support for obligations that would constitute "Indebtedness"
under and as defined in the Senior Notes Indentures in an amount in
excess of the amount thereof permitted by Section 4.03(b)(ix) of the
1995 Senior Notes Indenture and the 1997 Senior Notes Indenture and any
comparable provision of any indenture or other agreement relating to New
Senior Notes) and (ii) the Borrower shall have executed and delivered
such applications, agreements and other instruments relating to such
-30-
Letter of Credit as the Issuing Lender shall have reasonably requested
consistent with its then current practices and procedures with respect
to letters of credit of the same type, provided that in the event of any
--------
conflict between any such application, agreement or other instrument and
the provisions of this Agreement or any Security Document, the
provisions of this Agreement and the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section
2.03 on the due date therefor, such Lender shall pay interest to the
Issuing Lender (through the Administrative Agent) on such amount from
and including such due date to but excluding the date such payment is
made at a rate per annum equal to the Federal Funds Rate, provided that
--------
if such Lender shall fail to make such payment to the Issuing Lender
within three Business Days of such due date, then, retroactively to the
due date, such Lender shall be obligated to pay interest on such amount
at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.03 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (ii) each Lender shall have consented thereto.
(l) Notwithstanding anything to the contrary, if at any time one
or more Letters of Credit denominated in a Foreign Currency shall be
issued and outstanding the Administrative Agent may require by notice to
the Borrower that the then Dollar Equivalent of the Undrawn Face Amount
of each such Letter of Credit be determined at such time. Upon making
such determination, the Administrative Agent shall promptly notify the
Borrower and the Revolving Credit Lender thereof. If, on the date of
such determination, the sum of (A) the aggregate Dollar Equivalent of
such Letters of Credit, (B) the outstanding aggregate amount of all
Letter of Credit Liabilities in respect of all other Letters of Credit
and (C) the aggregate outstanding principal amount of the Facility A
Revolving Credit Loans shall exceed the aggregate amount of the Facility
A Revolving Credit Commitments as then in effect, the Borrower shall, if
requested by the Administrative Agent or any Revolving Credit Lender
(through the Administrative Agent), prepay Facility A Revolving Credit
Loans to the extent of such excess. Any such prepayment pursuant to this
paragraph (l) shall be accompanied by any amounts payable under
Sections 3.02 and 5.05.
The Borrower hereby indemnifies and holds harmless each Lender and the
Administrative Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses that such Lender or the Administrative Agent may
incur (or that may be claimed against such Lender or the Administrative Agent by
any Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing Lender under
-31-
any Letter of Credit; provided that the Borrower shall not be required to
--------
indemnify any Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the Issuing Lender
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (ii) in the case of the Issuing
Lender, such Lender's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 2.03 is intended to limit the
other obligations of the Borrower, any Lender or the Administrative Agent under
this Agreement. Anything herein to the contrary notwithstanding (i) the Borrower
shall indemnify the Issuing Lender for any loss or shortfall resulting from the
redenomination into Dollars of Reimbursement Obligations with respect to any
Letter of Credit denominated in a Foreign Currency including, without
limitation, any loss suffered by the Issuing Lender as a result of the
reimbursement in Dollars by the Lenders under clause (e) above with respect to
any drawing of such Letter of Credit and (ii) each Lender shall automatically
acquire a participation in an amount equal to such Lender's Commitment
Percentage of such shortfall and each Lender (other than the Issuing Lender)
thereby shall absolutely, unconditionally and irrevocably assume and shall be
unconditionally obligated to the Issuing Lender to pay and discharge when due
its Commitment Percentage of such shortfall under such Letter of Credit.
2.04. Changes of Commitments.
----------------------
(a) The aggregate amount of the Facility A Revolving Credit
Commitments shall be automatically reduced to zero on the Facility A Revolving
Credit Commitment Termination Date.
(b) The Borrower shall have the right at any time or from time to
time (i) so long as no Facility A Revolving Credit Loan or Letter of Credit
Liabilities are outstanding, to terminate the Facility A Revolving Credit
Commitments, and (ii) to reduce permanently the aggregate unutilized amount of
the Facility A Revolving Credit Commitments (for which purpose utilization of
the Facility A Revolving Credit Commitments shall be deemed to include the
aggregate amount of Letter of Credit Liabilities); provided that (x) the
--------
Borrower shall give notice of each such termination or permanent reduction as
provided in Section 4.05 and (y) each partial permanent reduction shall be in an
aggregate amount at least equal to $5,000,000 (or a larger multiple of
$1,000,000).
(c) Any portion of the Facility B Term Loan Commitments not used
on or prior to the Facility B Term Loan Commitment Termination Date shall be
automatically terminated at the close of business (New York time) on the
Facility B Term Loan Commitment Termination Date (subject to the second sentence
of Section 2.01(b)).
(d) Any portion of the Facility C Term Loan Commitments not used
on or prior to the Facility C Term Loan Commitment Termination Date shall be
automatically terminated at the close of business (New York time) on the
Facility C Term Loan Commitment Termination Date.
-32-
(e) The Commitments once terminated or permanently reduced may
not be reinstated.
2.05. Commitment Fee. The Company shall pay to the
--------------
Administrative Agent for account of each Lender a commitment fee on the daily
average unused amount of the respective Commitments of such Lender (for which
purpose the aggregate amount of any Letter of Credit Liabilities shall be deemed
to be a pro rata (based on the Facility A Revolving Credit Commitments) use of
each Lender's Facility A Revolving Credit Commitment), for the period from and
including the date hereof to but not including the date such Commitment is
terminated, at a rate per annum equal to the Applicable Rate. Any Reserved
Commitment Amount hereunder shall not be deemed a utilization of any Commitment.
Accrued commitment fees shall be payable on each Quarterly Date and on the date
the relevant Commitments are terminated.
2.06. Lending Offices. The Loans of each Type made by each
---------------
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
2.07. Several Obligations; Remedies Independent. The failure of
-----------------------------------------
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender, and (except as otherwise provided in Section 4.06) no Lender shall have
any obligation to the Administrative Agent or any other Lender for the failure
by such Lender to make any Loan required to be made by such Lender. The amounts
payable by the Borrower at any time hereunder and under the Notes to each Lender
shall be a separate and independent debt and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and the Notes, and
it shall not be necessary for any other Lender or the Administrative Agent to
consent to, or be joined as an additional party in, any proceedings for such
purposes.
2.08. Notes.
-----
(a) The Facility A Revolving Credit Loans made by each Lender
shall be evidenced by a single promissory note of the Borrower substantially in
the form of Exhibit A-1, dated the date hereof, payable to such Lender in a
principal amount equal to the amount of its Facility A Revolving Credit
Commitment as originally in effect and otherwise duly completed.
(b) The Facility B Term Loans made by each Lender shall be
evidenced by a single promissory note of the Borrower substantially in the form
of Exhibit A-2, dated the date hereof, payable to such lender in a principal
amount equal to its Facility B Term Loan Commitment as originally in effect and
otherwise duly completed.
(c) The Facility C Term Loans made by each Lender shall be
evidenced by a single promissory note of the Borrower substantially in the form
-33-
of Exhibit A-3, dated the date hereof, payable to such Lender in a principal
amount equal to its Facility C Term Loan Commitment as originally in effect and
otherwise duly completed.
(d) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and, prior to any transfer of the
Note evidencing the Loans of such Class held by it, endorsed by such Lender on
the schedule attached to such Note or any continuation thereof; provided that
--------
the failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(e) No Lender shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment, Loans and Notes pursuant to
Section 12.06 (and, if requested by any Lender, the Borrower agrees to so
exchange any Note).
2.09. Optional Prepayments and Conversions or Continuations of
--------------------------------------------------------
Loans. Subject to Section 4.04, the Borrower shall have the right to prepay
-----
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
provided that:
--------
(a) the Borrower shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in
Section 4.05 (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable
hereunder);
(b) upon any prepayment of Eurodollar Loans other than on the
last day of an Interest Period for such Loans, the Borrower shall pay
any amounts owing under Section 5.05 as a result of such prepayment; and
(c) any Conversion into or Continuation of Eurodollar Loans shall
be subject to the provisions of Section 2.01(d).
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10, in the event that any Event of Default shall have
occurred and be continuing, the Administrative Agent may (and at the request of
the Majority Lenders shall) suspend the right of the Borrower to Convert any
Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan, in
which event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) into, or Continued as, the case may be, Base Rate
Loans.
-34-
2.10. Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Excess Cash Flow. Not later than the date 90 days after the
----------------
end of each fiscal year of the Borrower commencing with the fiscal year ending
on December 31, 1999, the Borrower shall prepay the Loans (and/or provide cover
for Letter of Credit Liabilities as specified in paragraph (h) below), and the
Facility A Revolving Credit Commitments shall be subject to automatic reduction,
in an aggregate amount equal to the excess of (A) 50% of Excess Cash Flow for
such fiscal year over (B) the aggregate amount of prepayments of Loans made
during such fiscal year pursuant to Section 2.09, such prepayment and reduction
to be applied in accordance with paragraph (e) below; provided that no such
prepayment shall be required for any fiscal year to the extent that the Leverage
Ratio as at the last day of such fiscal year shall be less than 3.50 to 1.
(b) Debt Issuance. Upon any Debt Issuance, the Borrower shall
-------------
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (h) below), and the Facility A Revolving Credit
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 100% of the Net Available Proceeds of such Debt Issuance, such
prepayment and reduction to be applied in accordance with paragraph (e) below.
(c) Casualty Events. Upon the date 180 days following the receipt
---------------
by any Obligor of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any Property of the
Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower
or such Subsidiary, as the case may be, shall have determined not to repair or
replace the Property affected by such Casualty Event), the Borrower shall prepay
the Loans (and/or provide cover for Letter of Credit Liabilities as provided in
paragraph (h) below), and the Facility A Revolving Credit Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds of such Casualty Event not theretofore applied to the repair
or replacement of such Property (or to reimburse the Borrower or respective
Subsidiary for repairing or replacing such Property), such prepayment and
reduction to be applied in accordance with paragraph (e) below. Notwithstanding
the foregoing, the Borrower shall not be required to make any prepayment under
this Section 2.10(c) unless the Net Available Proceeds of a Casualty Event shall
be greater than or equal to $1,000,000.
Nothing in this paragraph (c) shall be deemed to limit any
obligation of the Borrower or any of its Subsidiaries pursuant to any of the
Security Documents to remit to a collateral or similar account maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds of
insurance, condemnation award or other compensation received in respect of any
Casualty Event or to obligate the Administrative Agent to release any of such
proceeds from such account to the Borrower for purposes of repair, replacement
or reinvestment as aforesaid upon the occurrence and during the continuance of
an Event of Default.
-35-
(d) Sale of Assets. Without limiting the obligation of the
--------------
Borrower to obtain the consent of the Majority Lenders to any Disposition not
otherwise permitted hereunder, the Borrower agrees, on or prior to the
occurrence of any Disposition (herein, the "Current Disposition"), to deliver to
-------------------
the Administrative Agent a statement certified by a Responsible Officer of the
Borrower, in form and detail reasonably satisfactory to the Administrative
Agent, of the estimated amount of the Net Available Proceeds of the Current
Disposition that will (on the date of the Current Disposition) be received in
cash and, to the extent that the Net Available Proceeds of the Current
Disposition, and of all prior Dispositions as to which a prepayment has not yet
been made under this Section 2.10(d), shall exceed $1,000,000, the Borrower will
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
provided in paragraph (h) below), and the Facility A Revolving Credit Commitment
shall be subject to automatic reduction, such prepayment and deduction to be
applied in accordance with paragraph (e) below, as follows:
(i) within two days of the Current Disposition, in an aggregate
amount equal to 100% of such estimated amount of the Net Available
Proceeds of the Current Disposition, to the extent received in cash on
the date of the Current Disposition, together with 100% of the Net
Available Proceeds of all such prior Dispositions, provided that if the
--------
amount of such required prepayment (and reduction of Commitments) shall
exceed $5,000,000, then such prepayment shall be made on the date of the
Current Disposition; and
(ii) thereafter, quarterly, on the date of the delivery by the
Borrower to the Administrative Agent pursuant to Section 9.01(b) of the
financial statements for each quarterly fiscal period or (if earlier)
the date 60 days after the end of such quarterly fiscal period, to the
extent the Borrower or any of its Subsidiaries shall receive Net
Available Proceeds during such quarterly fiscal period in cash under
deferred payment arrangements or Disposition Investments entered into or
received in connection with any Disposition, an amount equal to (A) 100%
of the aggregate amount of such Net Available Proceeds minus (B) any
-----
transaction expenses associated with Dispositions and not previously
deducted in the determination of Net Available Proceeds plus (or minus,
---- -----
as the case may be) (C) any other adjustment received or paid by the
Obligors pursuant to the respective agreements giving rise to
Dispositions and not previously taken into account in the determination
of the Net Available Proceeds of Dispositions, provided that if prior to
--------
the date upon which the Borrower would otherwise be required to make a
prepayment under this clause (ii) with respect to any quarterly fiscal
period the aggregate amount of such Net Available Proceeds (after giving
effect to the adjustments provided for in this clause (ii)) shall exceed
$1,000,000, then the Borrower shall within five Business Days make a
prepayment under this clause (ii) in an amount equal to such required
prepayment.
Notwithstanding the foregoing, the Borrower shall not be required
to make a prepayment pursuant to this paragraph (d) with respect to the
Net Available Proceeds from any Disposition in the event that the
Borrower advises the Administrative Agent at the time the Net Available
-36-
Proceeds from such Disposition are received that the Borrower or one or
more of its Subsidiaries intends to reinvest such Net Available Proceeds
pursuant to a Permitted Reinvestment Transaction, so long as (i) the Net
Available Proceeds from any Disposition are in fact so reinvested within
twelve months of such Disposition, it being understood that any such Net
Available Proceeds not so reinvested shall be forthwith applied to the
prepayment of Loans and reductions of Commitments as provided above, and
any Reserved Commitment Amount that remains unutilized for more than
twelve months shall be applied to the permanent reduction of the
Facility A Revolving Credit Commitments, and (ii) the aggregate amount
of Net Available Proceeds (together with investment earnings thereon)
pending reinvestment as contemplated by this sentence shall not at any
time exceed $10,000,000. As contemplated by Section 4.01 of the Security
Agreement, nothing in this paragraph (d) shall be deemed to obligate the
Administrative Agent to release any of such proceeds from the Collateral
Account to the Borrower for purposes of reinvestment as aforesaid upon
the occurrence and during the continuance of any Event of Default.
(e) Application. Prepayments and reductions of Commitments
-----------
pursuant to paragraphs (a), (b), (c) and (d) of this Section 2.10 shall be
effected as follows:
(i) first, the amount of any such prepayment shall be applied to
-----
the prepayment of outstanding Facility B Term Loans and Facility C Term
Loans, ratably in accordance with the respective principal amounts
thereof, and to the installments thereof ratably in accordance with the
respective principal amounts thereof;
(ii) second, following the prepayment in full of all outstanding
------
amounts of the Term Loans the amount of any such prepayment shall be
applied to the permanent reductions of the Facility A Revolving Credit
Commitments and to the extent that the aggregate amount of the Facility
A Revolving Credit Loans together with the aggregate amount of all
Letter of Credit Liabilities shall exceed the amount of the then
existing Facility A Revolving Credit Commitments, the Borrower shall
prepay the outstanding Facility A Revolving Credit Loans in an amount
equal to such excess.
Anything herein to the contrary notwithstanding (i) any Lender
holding a Facility C Term Loan may elect, by notice to the Administrative Agent
by telephone (confirmed by telecopy) at least one Business Day prior to the
prepayment date, to decline all or any portion of any prepayment of its
Facility C Term Loans pursuant to this Section 2.10, in which case the aggregate
amount of the prepayment that would have been applied to prepay Facility C Term
Loans but was so declined shall be applied, instead, to prepay Facility B Term
Loans as provided above and (ii) if any event described in the foregoing
paragraphs (a), (b), (c) and (d) shall have occurred and no Facility B Term
Loans and Facility C Term Loans shall be then outstanding, the amount of any
prepayment shall be applied to the reduction of the Facility B Term Loan
Commitments and Facility C Term Loan Commitments then in effect, ratably in
accordance with the respective amounts thereof.
-37-
(f) Facility A Revolving Loan Clean-Up. The Borrower will from
----------------------------------
time to time prepay the Facility A Revolving Credit Loans in such amounts as
shall be necessary so that for a period of at least 30 consecutive days during
the period commencing on June 1 and ending on November 1 in each fiscal year
beginning in 1998, there shall be no Facility A Revolving Credit Loans
outstanding hereunder.
(g) Change of Control. In the event that the Borrower shall be
-----------------
required pursuant to the provisions of any instrument evidencing or governing
any Subordinated Indebtedness to redeem, or make an offer to redeem or
repurchase, all or any portion of such Subordinated Indebtedness as a result of
a change of control (however defined), then, concurrently with the occurrence of
the event giving rise to such change of control, the Borrower shall prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (h) below) in full, and the Commitments shall automatically terminate.
(h) Cover for Letter of Credit Liabilities. In the event that the
--------------------------------------
Borrower shall be required pursuant to this Section 2.10, or pursuant to
Section 3.01(a), to provide cover for Letter of Credit Liabilities, the Borrower
shall effect the same by paying to the Administrative Agent in immediately
available funds an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in the Collateral Account (as provided
therein as collateral security in the first instance for the Letter of Credit
Liabilities) until such time as the Letters of Credit shall have been terminated
and all of the Letter of Credit Liabilities paid in full.
Section 3. Payments of Principal and Interest.
3.01. Repayment of Loans.
------------------
(a) Facility A Revolving Credit Loan. The Borrower hereby
--------------------------------
promises to pay to the Administrative Agent for account of each Lender the
entire outstanding principal amount of such Lender's Facility A Revolving Credit
Loans, and each Facility A Revolving Credit Loan shall mature, on the Facility A
Revolving Credit Commitment Termination Date.
(b) Facility B Term Loan. The Borrower hereby promises to pay to
--------------------
the Administrative Agent for account of the Facility B Term Loan Lenders the
aggregate outstanding principal of the Facility B Term Loans in sixteen
installments payable on the Principal Payment Dates as follows:
-38-
Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------ -------------------------
June 30, 1999 2,500,000.00
September 30, 1999 2,500,000.00
December 31, 1999 2,500,000.00
March 31, 2000 2,500,000.00
June 30, 2000 6,250,000.00
September 30, 2000 6,250,000.00
December 31, 2000 6,250,000.00
March 31, 2001 6,250,000.00
June 30, 2001 7,500,000.00
September 30, 2001 7,500,000.00
December 31, 2001 7,500,000.00
March 31, 2002 7,500,000.00
June 30, 2002 8,750,000.00
September 30, 2002 8,750,000.00
December 31, 2002 8,750,000.00
March 31, 2003 8,750,000.00
(c) Facility C Term Loan. The Borrower hereby promises to pay to
--------------------
the Administrative Agent for account of the Facility C Term Loan Lenders the
aggregate outstanding principal of the Facility C Term Loans in twenty-nine
installments payable on the Principal Payment Dates as follows:
-39-
Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------ -------------------------
March 31, 1999 1,000,000.00
June 30, 1999 250,000.00
September 30, 1999 250,000.00
December 31, 1999 250,000.00
March 31, 2000 250,000.00
June 30, 2000 250,000.00
September 30, 2000 250,000.00
December 31, 2000 250,000.00
March 31, 2001 250,000.00
June 30, 2001 250,000.00
September 30, 2001 250,000.00
December 31, 2001 250,000.00
March 31, 2002 250,000.00
June 30, 2002 250,000.00
September 30, 2002 250,000.00
December 31, 2002 250,000.00
March 31, 2003 250,000.00
June 30, 2003 250,000.00
September 30, 2003 250,000.00
December 31, 2003 250,000.00
March 31, 2004 250,000.00
June 30, 2004 6,250,000.00
September 30, 2004 6,250,000.00
December 31, 2004 6,250,000.00
March 31, 2005 6,250,000.00
June 30, 2005 23,500,000.00
September 30, 2005 23,500,000.00
December 31, 2005 23,500,000.00
March 31, 2006 23,500,000.00
-40-
3.02. Interest. The Borrower hereby promises to pay to the
--------
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender to the Borrower for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Rate; and
----
(b) during each Interest Period for such Loan during which such
Loan is a Eurodollar Loan, the Eurodollar Rate for such Interest Period
plus the Applicable Rate.
----
Notwithstanding the foregoing, the Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and on any other amount payable by
the Borrower hereunder or under the Notes held by such Lender to or for account
of such Lender, that shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full.
Accrued interest on each Loan shall be payable (i) in the case of
a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of a
Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan, upon
the payment or prepayment thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid or Converted),
except that interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower.
Section 4. Payments; Pro Rata Treatment; Computations, Etc.
4.01. Payments.
--------
(a) Except to the extent otherwise provided herein, all payments
of principal, interest, Reimbursement Obligations and other amounts to be made
by the Borrower under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Loan Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent, at the
Principal Office, in immediately available funds, not later than 12:00 p.m. New
York time on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
-41-
(b) Any Lender for whose account any such payment is to be made
may (but shall not be obligated to) debit the amount of any such payment that is
not made by such time to any ordinary deposit account of the Borrower with such
Lender (with notice to the Borrower and the Administrative Agent), provided that
--------
such Lender's failure to give such notice shall not affect the validity thereof.
(c) The Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that the
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence
of Section 2.03(e), each payment received by the Administrative Agent under this
Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 in respect of Commitments of a particular Class shall be
made for account of the relevant Lenders, and each termination or reduction of
the amount of the Commitments of a particular Class under Section 2.04 shall be
applied to the respective Commitments of such Class of the relevant Lenders, pro
rata according to the amounts of their respective Commitments of such Class; (b)
except as otherwise provided in Section 5.04, Eurodollar Loans of any Class
having the same Interest Period shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Commitments (in the case of
the making of Loans) or their respective Loans (in the case of Conversions and
Continuations of Loans); (c) each payment of principal of Loans by the Borrower
shall be made for account of the relevant Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans of such Class held by them;
(d) each optional prepayment of principal of Loans by the Borrower shall be
applied to the prepayment of outstanding Facility B Term Loans and Facility C
Term Loans, ratably in accordance with the respective principal amounts thereof,
and in each case to the installments thereof ratably in accordance with the
respective principal amounts thereof; and (e) each payment of interest on Loans
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by the Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
4.03. Computations. Interest on Eurodollar Loans and commitment
------------
fee and letter of credit fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but, except as otherwise
provided in Section 2.03(g), excluding the last day) occurring in the period for
which payable and interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 360 days and actual days elapsed.
4.04. Minimum Amounts. Except for mandatory prepayments made
---------------
pursuant to Section 2.10 and Conversions or prepayments made pursuant to Section
5.04, each borrowing, Conversion and partial prepayment of principal of Base
Rate Loans shall be in an amount at least equal to $500,000 and multiples of
$100,000 and each borrowing, Conversion and partial prepayment of principal of
Eurodollar Loans shall be in an aggregate amount at least equal to $5,000,000
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of Eurodollar Loans, having different Interest Periods at the same
time hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period), provided that
if any Eurodollar Loans would otherwise be in a lesser principal amount for any
period, such Loans shall be Base Rate Loans during such period.
4.05. Certain Notices. Notices by the Borrower to the
---------------
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans, of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
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Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Borrower fails to
select the Type of Loan, or the duration of any Interest Period for any
Eurodollar Loan, within the time period and otherwise as provided in this
Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06. Non-Receipt of Funds by the Administrative Agent. Unless
------------------------------------------------
the Administrative Agent shall have been notified by a Lender or the Borrower
(the "Payor") prior to the date on which the Payor is to make payment to the
-----
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
----------------
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
------------
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day (it
being understood that, in the event the Borrower is the recipient of such
payment, such interest shall be in lieu of any interest otherwise payable under
Section 3.02) and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest as aforesaid, provided that if
--------
neither the recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
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(i) if the Required Payment shall represent a payment to be made
by the Borrower to the Lenders, the Borrower and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the Post-Default Rate (without
duplication of the obligation of the Borrower under Section 3.02 to pay
interest on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required Payment
to the Administrative Agent shall not limit such obligation of the
Borrower under Section 3.02 to pay interest at the Post-Default Rate in
respect of the Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to the Borrower, the Payor and the Borrower
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment pursuant to whichever of the
rates specified in Section 3.02 is applicable to the Type of such Loan,
it being understood that the return by the Borrower of the Required
Payment to the Administrative Agent shall not limit any claim the
Borrower may have against the Payor in respect of such Required Payment.
4.07. Sharing of Payments, Etc.
------------------------
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of such Obligor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender's
Loans, Reimbursement Obligations or any other amount payable to such Lender
hereunder, that is not paid when due (regardless of whether such deposit or
other indebtedness is then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, provided that such
--------
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any other
Loan Document through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of any Class or Letter of Credit Liabilities or any other amounts then due
hereunder or thereunder by such Obligor to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans or Letter of Credit Liabilities or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
-45-
unpaid principal of and/or interest on the Loans or Letter of Credit Liabilities
or such other amounts, respectively, owing to each of the Lenders. To such end
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01. Additional Costs.
----------------
(a) The Borrower shall pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
----------------
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Notes or changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its Notes in respect of
any of such Loans (excluding changes in the rate of tax on the overall
net income of such Lender or of such Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement used in the
determination of the Eurodollar Rate for any Interest Period for such
Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01), or any commitment
of such Lender (including, without limitation, the Commitments of such
Lender hereunder); or
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(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Borrower under this paragraph, the
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Loans of any other Type into Eurodollar Loans,
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 shall be applicable), provided
--------
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basle Accord, of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrower of any event occurring
after the date hereof entitling such Lender to compensation under paragraph (a)
or (b) of this Section 5.01 as promptly as practicable, but in any event within
45 days, after such Lender obtains actual knowledge thereof; provided that (i)
--------
if any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America.
-47-
Each Lender will furnish to the Borrower a certificate setting
forth the basis and amount of each request by such Lender for compensation under
paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01 on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02. Limitation on Types of Loans. Anything herein to the
----------------------------
contrary notwithstanding, , on or prior to the determination of the Eurodollar
Base Rate for any Interest Period for any Loan;
(a) the Administrative Agent determines, which determination
shall be conclusive absent manifest error, that quotations of interest
rates for the relevant deposits referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for Eurodollar Loans as provided herein;
or
(b) the Majority Lenders determine, which determination shall be
conclusive absent manifest error, and notify the Administrative Agent
that the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 upon the basis of which the rate
of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely to cover adequately the cost to such Lenders
of making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.09.
5.03. Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
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5.04. Treatment of Affected Loans. If the obligation of any
---------------------------
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03, such
Lender's Eurodollar Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for Eurodollar Loans
(or, in the case of a Conversion resulting from a circumstance described in
Section 5.03, on such earlier date as such Lender may specify to the Borrower
with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 5.01 or
5.03 that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base
Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to
the Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are outstanding, such Lender's Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Base Rate Loans and Eurodollar Loans of
such Class are allocated among the Lenders ratably (as to principal amounts,
Types and Interest Periods) in accordance with their respective Commitments of
such Class.
5.05. Compensation. The Borrower shall pay to the Administrative
------------
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion
of a Eurodollar Loan made by such Lender for any reason (including,
without limitation, the acceleration of the Loans pursuant to Section
10) on a date other than the last day of the Interest Period for such
Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 to be satisfied) to borrow a Eurodollar Loan from
such Lender on the date for such borrowing specified in the relevant
notice of borrowing given pursuant to Section 2.02.
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Dow Xxxxx Markets Service
Page 3750 (British Bankers Association Settlement Rate) or other publicly
available source as described in the definition of "Eurodollar Base Rate" in
Section 1.01.
5.06. Additional Costs in Respect of Letters of Credit. Without
------------------------------------------------
limiting the obligations of the Borrower under Section 5.01 (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders, reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrower shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrower shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07. U.S. Taxes.
----------
(a) The Borrower agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
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not be less than the amount stated herein to be then due and payable, provided
--------
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender is,
on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.06(b)) and on the date of any change in the
Applicable Lending office of such Lender, either entitled to submit a
Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is required
by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Taxes.
For the purposes of this paragraph, (A) "U.S. Person" means a citizen, national
-----------
or resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of America
or any State thereof, or any estate or trust that is subject to Federal income
taxation regardless of the source of its income, (B) "U.S. Taxes" means any
----------
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein, (C) "Form 1001" means Form 1001 (Ownership, Exemption, or Reduced Rate
---------
Certificate) of the Department of the Treasury of the United States of America
and (D) "Form 4224" means Form 4224 (Exemption from Withholding of Tax on Income
---------
Effectively Connected with the Conduct of a Trade or Business in the United
States) of the Department of the Treasury of the United States of America. Each
of the Forms referred to in the foregoing clauses (C) and (D) shall include such
successor and related forms as may from time to time be adopted by the relevant
taxing authorities of the United States of America to document a claim to which
such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Borrower
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence reasonably satisfactory to such Person of such deduction, withholding
or payment (as the case may be).
5.08. Replacement of Lenders. If any of the following shall occur
----------------------
with respect to any Lender (any such Lender being herein called an "Affected
--------
Lender"):
------
(a) any Lender shall request compensation pursuant to Section
5.01, 5.06 or 5.07,
-51-
(b) any Lender's obligation to make or Continue Loans of any
Type, or to Convert Loans of any Type into the other Type of Loan, shall
be suspended pursuant to Section 5.01 or 5.03 or
(c) any Lender shall default in the making of any Loan required
to be made by it pursuant to Section 2.01,
the Borrower, upon three Business Days' notice, may require that such Affected
Lender transfer all of its right, title and interest under this Agreement and
such Affected Lender's Notes to any bank or other financial institution (a
"Proposed Lender") identified by the Borrower that is reasonably satisfactory to
---------------
the Administrative Agent and the Issuing Lender (i) if such Proposed Lender
agrees to assume all of the obligations of such Affected Lender hereunder, and
to purchase all of such Affected Lender's Loans hereunder for a consideration
equal to the aggregate outstanding principal amount of such Affected Lender's
Loans, together with interest thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Affected Lender of all
other amounts payable hereunder to such Affected Lender on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 as if all of such Affected Lender's Loans
were being prepaid in full on such date) and (ii) if such Affected Lender has
requested compensation pursuant to Section 5.01, 5.06 or 5.07, such Proposed
Lender's aggregate requested compensation, if any, pursuant to Section 5.01,
5.06 or 5.07 with respect to such Affected Lender's Loans is lower than that of
the Affected Lender. Subject to the provisions of Section 12.06(b), such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements of the Borrower contained in Sections 5.01, 5.06, 5.07 and 12.04
(without duplication of any payments made to such Affected Lender by the
Borrower or the Proposed Lender) shall survive for the benefit of such Affected
Lender under this Section 5.08 with respect to the time prior to such
replacement.
Section 6. Guarantee.
---------
6.01. The Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to, and the Note held by each Lender
of, the Borrower and all other amounts from time to time owing to the Lenders or
the Administrative Agent by the Borrower under this Agreement and under the
Notes and by any Obligor under any of the other Loan Documents, and all
obligations of the Borrower or any of its Subsidiaries to any Lender (or any
affiliate of any Lender) in respect of any Hedging Agreement, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Subsidiary Guarantors
----------------------
hereby further jointly and severally agree that if the Borrower shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise)
any of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
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the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02. Obligations Unconditional. The obligations of the
-------------------------
Subsidiary Guarantors under Section 6.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under this Agreement, the
Notes or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (other than payment in full), it being the intent of this Section 6.02
that the obligations of the Subsidiary Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing it is agreed that the occurrence of any
one or more of the following shall not alter or impair the liability of the
Subsidiary Guarantors hereunder, which shall remain absolute and unconditional
as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other Guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any Lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
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6.03. Reinstatement. The obligations of the Subsidiary Guarantors
-------------
under this Section 6 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Subsidiary Guarantors jointly
and severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04. Subrogation. Each Subsidiary Guarantor hereby waives all
-----------
rights of subrogation or contribution, whether arising by contract or operation
of law (including, without limitation, any such right arising under the
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 6 and further agrees with the Borrower for the
benefit of its creditors (including, without limitation, each Lender and the
Administrative Agent) that any such payment by it shall constitute a
contribution of capital by such Subsidiary Guarantor to the Borrower (or an
investment in the equity capital of the Borrower by such Subsidiary Guarantor).
6.05. Remedies. The Subsidiary Guarantors jointly and severally
--------
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement and the Notes may be declared
to be forthwith due and payable as provided in Section 10 (and shall be deemed
to have become automatically due and payable in the circumstances provided in
Section 10) for purposes of Section 6.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 6.01.
6.06. Instrument for the Payment of Money. Each Subsidiary
-----------------------------------
Guarantor hereby acknowledges that the guarantee in this Section 6 constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Administrative Agent, at its sole option, in the event of a dispute by
such Subsidiary Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3213.
6.07. Continuing Guarantee. The guarantee in this Section 6 is a
--------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08. Rights of Contribution. The Subsidiary Guarantors hereby
----------------------
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
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Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the Properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section 6.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Section 6 and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding Guarantor"
------------------------
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
--------------
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
--------------
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all Properties of such Subsidiary
Guarantor (excluding any shares of stock of, or ownership interest in, any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of
such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all Properties of all of the Obligors
exceeds the amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of the Borrower and the Subsidiary Guarantors hereunder and under
the other Loan Documents) of all of the Obligors, determined (A) with respect to
any Subsidiary Guarantor that is a party hereto on the Amendment Effective Date,
as of the Amendment Effective Date, and (B) with respect to any other Subsidiary
Guarantor, as of the date such Subsidiary Guarantor becomes a Subsidiary
Guarantor hereunder.
6.09. General Limitation on Guarantee Obligations. In any action
-------------------------------------------
or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 would otherwise, taking into account the provisions of Section
6.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 6.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
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Section 7. Conditions.
7.01. Initial Extension of Credit of any Class. The obligation of
----------------------------------------
any Lender to make its initial extension of credit hereunder (whether by making
a Loan or issuing a Letter of Credit) is subject to the conditions precedent
that (i) there shall have been no material adverse change in financial, banking
and capital market conditions and (ii) the Administrative Agent and the Arranger
shall have received the following documents, each of which shall be reasonably
satisfactory to the Administrative Agent and the Arranger (and to the extent
specified below, to each Lender) in form and substance, it being understood
that, to the extent a form of a particular document is specified below, such
form shall be deemed to be satisfactory to the Administrative Agent and the
Arranger and the Lenders:
(a) Corporate Documents. Certified copies of the charter and
-------------------
by-laws (or equivalent documents) of each Obligor and of all corporate
or other authority for each Obligor (including, without limitation, in
the case of any corporate Obligor, board of director resolutions and
evidence of the incumbency, including specimen signatures, of officers)
with respect to the execution, delivery and performance of such of the
Basic Documents to which such Obligor, as the case may be, is intended
to be a party and each other document to be delivered by such Obligor,
as the case may be, from time to time in connection herewith and the
extensions of credit hereunder (and the Administrative Agent and each
Lender may conclusively rely on such certificate until it receives
notice in writing from such Obligor, as the case may be, to the
contrary).
(b) Officer's Certificate. A certificate of a Responsible Officer
---------------------
of the Borrower, dated the Closing Date, to the effect set forth in the
lettered clauses of the first sentence of Section 7.03.
(c) Business Plan. A business plan, prepared by a Responsible
-------------
Officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, consisting of financial projections for the fiscal
years ending December 31, 1998 through December 31, 2006, together with
a written analysis based thereon of the business and prospects of the
Borrower and its Subsidiaries for such fiscal years; provided that the
business plan delivered in connection with the Information Memorandum is
hereby deemed satisfactory for purposes of this Section 7.01(c).
(d) Opinion of Counsel to the Obligors. An opinion, dated the
----------------------------------
Closing Date, of Xxxx Marks & Xxxxx LLP, counsel to the Obligors,
substantially in the form of Exhibit D, and covering such other matters
as the Administrative Agent or any Lender may reasonably request (and
each Obligor hereby instructs such counsel to deliver such opinion to
the Lender and the Administrative Agent).
(e) Opinion of Special New York Counsel to the Arranger. An
---------------------------------------------------
opinion, dated the Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx,
special New York counsel to the Arranger, substantially in the form of
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Exhibit E (and the Arranger hereby instructs such counsel to deliver
such opinion to the Lenders).
(f) Notes. The Notes, duly completed and executed for each
-----
Lender.
(g) Security Agreement. The Security Agreement, duly executed and
------------------
delivered by the Borrower, the Subsidiary Guarantors and the
Administrative Agent, together with the certificates and other
securities and instruments identified in Annex 1 thereto that are to be
delivered on the Closing Date, in each case endorsed in blank or
accompanied by undated stock powers executed in blank. In addition, the
Borrower and each Subsidiary Guarantor shall have taken such other
action (including, without limitation, delivering to the Administrative
Agent, for filing, appropriately completed and duly executed Uniform
Commercial Code financing statements) as the Administrative Agent shall
have requested in order to perfect the security interests created
pursuant to the Security Agreement.
(h) Insurance. Certificates of insurance evidencing the existence
---------
of all insurance required to be maintained by the Obligors pursuant to
Section 9.04 and the designation of the Administrative Agent as the loss
payee or additional named insured, as the case may be, thereunder to the
extent required by Section 9.04, with respect to all tangible real or
personal Property of the Obligors that constitutes collateral security
for the Loans, such certificates to be in such form and contain such
information as is specified in Section 9.04. In addition, the Borrower
shall have delivered a certificate of a Responsible Officer of the
Borrower setting forth the insurance obtained by it in accordance with
the requirements of Section 9.04 and stating that such insurance is in
full force and effect and that all premiums then due and payable thereon
have been paid.
(i) Environmental Surveys. Copies of the environmental surveys
---------------------
and assessments with respect to the Existing Parks, excluding the parks
to be purchased pursuant to the Walibi Acquisition Agreement and the
Tender Offer (to the extent available on the Closing Date), referred to
in Schedule III, Part 1.
(j) Solvency Analysis. A certificate of a Responsible Officer of
-----------------
the Borrower to the effect that, as of the Closing Date and after giving
effect to the initial Loans hereunder and to the other transactions
contemplated hereby:
(i) the aggregate value of all Properties of the Borrower
and its Subsidiaries at their present fair saleable value (i.e.,
the amount that may be realized within a reasonable time,
considered to be six months to one year, either through
collection or sale at the regular market value, conceiving the
latter as the amount that could be obtained for the Property in
question within such period by a capable and diligent businessman
from an interested buyer who is willing to purchase under
ordinary selling conditions), exceed the amount of all debts and
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liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries;
(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with which
to conduct their business operations as heretofore conducted; and
(iii) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay
their debts as they mature.
Such certificate shall include a statement to the effect that the
financial projections and underlying assumptions contained in such
analysis are fair and reasonable and accurately computed.
(k) Existing Credit Agreement. Evidence that all principal of and
-------------------------
interest on the extensions of credits outstanding under, and all other
amounts owing under, the Existing Credit Agreement shall have been (or
shall be simultaneously) paid in full, that any commitments to extend
credit under the Existing Credit Agreement shall have been (or shall be
simultaneously) canceled or terminated and that all Guarantees in
respect of, and all Liens securing, such Indebtedness shall have been
released (or arrangements for such release reasonably satisfactory to
the Administrative Agent shall have been made).
(l) Other Documents. Such other documents as the Administrative
---------------
Agent, the Arranger or any Lender or special New York counsel to the
Arranger may reasonably request.
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender, the Administrative Agent or
the Arranger in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special New
York counsel to the Arranger, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
extensions of credit hereunder (to the extent that statements for such fees and
expenses have been delivered to the Borrower).
7.02. Walibi Acquisition and Tender Offer Loans. The obligation
-----------------------------------------
of any Lender to make any extension of credit hereunder (whether by making a
Loan or issuing a Letter of Credit) the proceeds of which are to be applied to
finance in whole or in part the purchase price of the Walibi Acquisition and/or
the Tender Offer is subject to the conditions precedent that the Administrative
Agent and the Arranger shall have received or shall concurrently with the
consummation of the Walibi Acquisition receive the following documents, each of
which shall be reasonably satisfactory to the Administrative Agent and the
Arranger (and to the extent specified below, to each Lender) in form and
substance, it being understood that, to the extent a form of a particular
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document is specified below, such form shall be deemed to be satisfactory to the
Administrative Agent and the Arranger and the Lenders:
(a) Environmental Surveys. Copies of the environmental surveys
---------------------
and assessments with respect to the parks to be purchased pursuant to
the Walibi Acquisition Agreement and the Tender Offer.
(b) Consummation of Walibi Acquisition. Evidence that (i) the
----------------------------------
purchase by the Borrower of not less than 49% of the shares of Walibi
pursuant to the Walibi Acquisition shall have been (or shall be
simultaneously) consummated in all material respects in accordance with
the terms of the Walibi Acquisition Agreement (except for any
modifications, supplements or material waivers thereof, or written
consent of determinations made by the parties thereto, that shall be
reasonably satisfactory to the Majority Lenders, but only if such
modifications, supplements, waivers or determinations could reasonably
be expected to adversely affect the interests of the Lenders) and (ii)
the Borrower shall have effective control over the board of directors of
Walibi, and the Administrative Agent shall have received a certificate
of a Responsible Officer of the Borrower to such effect and to the
effect that attached thereto are true and complete copies of the Walibi
Acquisition Agreement (including all modifications, waivers and
supplements thereto entered into prior to the Closing Date, and exhibits
and schedules). In addition, the Administrative Agent shall have
received copies of the legal opinions delivered pursuant to the Walibi
Acquisition Agreement in connection with the Walibi Acquisition.
Promptly following the consummation of the Walibi Acquisition the
Administrative Agent shall receive each of the other documents delivered
in connection with the closing of the Walibi Acquisition pursuant to the
Walibi Acquisition Agreement.
(c) Other Documents. Such other documents as the Administrative
---------------
Agent, the Arranger or any Lender or special New York counsel to the
Arranger may reasonably request.
7.03. Initial and Subsequent Extensions of Credit. The obligation
-------------------------------------------
of the Lenders to make any Loan to the Borrower upon the occasion of each
extension of credit hereunder (including the initial extension of credit and any
extension of credit the proceeds of which are used to finance in whole or in
part the Walibi Acquisition and/or the Tender Offer, but excluding any
Continuations or Conversion of Loans) is subject to the conditions precedent
that, both immediately prior to the making of such extension of credit and also
after giving effect thereto and to the intended use thereof:
(a) the representations and warranties made by the Borrower in
Section 8, and by each Obligor in each of the other Loan Documents to
which it is a party, shall be true and complete on and as of the date of
the making of such extension of credit with the same force and effect as
if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date);
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(b) no Default shall have occurred and be continuing; and
(c) the Borrower shall have delivered to the Administrative Agent
a certificate of a Responsible Officer of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and
accompanied by such appraisals, if necessary, and other showings that
shall demonstrate to the reasonable satisfaction of the Administrative
Agent that such Loans may be permissibly incurred and secured under any
tests therefor set forth in the Senior Notes Indentures.
Each notice of borrowing, or request for issuance of a Letter of Credit, by the
Borrower hereunder shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. The Borrower
represents and warrants to Administrative Agent and the Lenders that:
8.01. Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries (other than Inactive Subsidiaries, as to which the Borrower makes
no representation or warranty): (a) is a corporation, partnership or other
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization; and (b) is qualified to do business and is
in good standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify could (either individually or in the aggregate) have a Material Adverse
Effect.
8.02. Financial Condition. The Borrower has heretofore
-------------------
furnished to each of the Lenders the following financial statements:
(i) the consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1997 and the related consolidated
statements of operations, shareholders, equity and cash flows of the
Borrower and its Subsidiaries for the fiscal year ended December 31,
1997, with the opinion thereon of KPMG Peat Marwick LLP;
(ii) the audited financial statements of Walibi and its
consolidated Subsidiaries for the fiscal year ended December 31, 1996,
with the opinion thereon of Coopers & Xxxxxxx N.V.;
(iii) Park-level statements of operating data for the fiscal year
ended December 31, 1997 for Walibi; and
(iv) a pro-forma unaudited consolidated statement of operations
data of Walibi as at the fiscal year ended December 31, 1997.
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All such financial statements (other than the pro forma financial statements)
are complete and fairly present in all material respects the actual consolidated
financial condition of the Borrower and its Subsidiaries and Walibi, as the case
may be, as at said respective dates and the actual consolidated results of their
operations for the applicable periods ended on said respective dates, all in
accordance with generally accepted accounting principles and practices applied
on a consistent basis. None of the Borrower nor any of its Subsidiaries nor
Walibi or any of its Subsidiaries has on the date hereof any material contingent
liabilities (other than, with respect to the Borrower and its Subsidiaries, the
Walibi Acquisition), liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the balance
sheet of the Borrower and its Subsidiaries as at December 31, 1997 or of Walibi
and its Subsidiaries as at December 31, 1997. Since December 31, 1997, there has
been no material adverse change in the consolidated financial condition,
operations, business or prospects taken as a whole of Walibi or the Borrower and
its Subsidiaries, as the case may be, from that set forth in said respective
financial statements as at said date (other than, with respect to the financial
statements of the Borrower and its Subsidiaries (x) the Walibi Acquisition from
and after the consummation thereof, (y) the repayment of all amounts owing
under, and the termination of the commitments under, the Amended and Restated
Credit Agreement dated as of January 31, 1997 between the Borrower and certain
lenders party thereto and (z) the execution and delivery of the Agreement of
Merger for the Premier Merger and related transactions (including, without
limitation, the acquisition of Six Flags Theme Parks Inc. in connection
therewith) from and after the consummation thereof, neither of which (in the
case of clauses (y) and (z)) shall be deemed to constitute a material adverse
change, assuming (in the case of clause (z)) the Premier Merger and the
acquisition of Six Flags Theme Parks Inc. are consummated).
8.03. Litigation. Except as set forth in Schedule VI, there are
----------
no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Borrower) threatened against the Borrower or any of its Subsidiaries
that, if adversely determined, could (either individually or in the aggregate)
have a Material Adverse Effect.
8.04. No Breach. None of the execution and delivery of this
---------
Agreement and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter, by-laws or other organizational
documents of any Obligor, or any applicable material law or regulation, or any
order, writ, injunction or decree of any court or governmental authority or
agency, or any material agreement or instrument to which the Borrower or any of
its Subsidiaries is a party or by which any of them or any of their Property is
bound or to which any of them is subject, or constitute a default under any such
agreement or instrument, or (except for the Liens created pursuant to the
Security Documents) result in the creation or imposition of any Lien upon any
Property of the Borrower or any of its Subsidiaries pursuant to the terms of any
such agreement or instrument, except that (i) consents have not been obtained
with respect to the assignment of contracts entered into in the ordinary course
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of business by the Borrower and/or its Subsidiaries and (ii) (in the case of the
Walibi Acquisition and the Tender Offer only) where the failure to obtain such
consent could not reasonably be expected to have a Material Adverse Effect.
8.05. Action. Each Obligor has all necessary corporate or other
------
power, authority and legal right to execute, deliver and perform its obligations
under each of the Basic Documents to which it is a party; the execution,
delivery and performance by each Obligor of each of the Basic Documents to which
it is a party have been duly authorized by all necessary corporate or other
action on its part (including, without limitation, any required shareholder
approvals); and this Agreement has been duly and validly executed and delivered
by each Obligor and constitutes, and each of the Notes and the other Basic
Documents to which it is a party when executed and delivered by such Obligor (in
the case of the Notes, for value) will constitute, its legal, valid and binding
obligation, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors, rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and
---------
no filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of this Agreement or any of the other Basic Documents
to which it is a party or for the legality, validity or enforceability hereof or
thereof, except for (i) filings and recordings in respect of the Liens created
pursuant to the Security Documents and (ii) the authorizations, approvals and
consents contemplated by the Walibi Acquisition Agreement, each of which will be
duly issued or obtained prior to the date on which the Walibi Acquisition shall
be consummated and each of which shall be in full force.
8.07. Properties and Permits, Etc.
---------------------------
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all of its material
Properties, except for Liens permitted under Section 9.06 and defects in title
that do not materially interfere with its ability to conduct its business as
currently conducted or to utilize such Properties and assets for their intended
purposes. All such material Properties are free and clear of Liens, other than
Liens permitted by Section 9.06.
(b) Each of the Borrower and its Subsidiaries has complied with
all material obligations under all material leases to which it is a party and
all such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual Property material to its business, and the use thereof by the
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Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(d) Each of the Borrower and its Subsidiaries holds all material
permits, licenses and other governmental authorizations necessary to enable it
to operate as heretofore conducted (other than seasonal permits, which it
anticipates will be obtained in the normal course), and will, upon the
consummation of any acquisition (except, in the case of the Walibi Acquisition
and the Tender Offer only, where the failure to obtain such authorizations could
not reasonably be expected to have a Material Adverse Effect) hold all material
permits, licenses and other governmental authorizations necessary to enable it
to operate (other than seasonal permits or liquor licenses, which it anticipates
will be obtained in the normal course).
8.08. Environmental Matters. Each of the Borrower and its
---------------------
Subsidiaries has obtained all environmental, health and safety permits,
licenses, registrations and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license,
registration or authorization would not (either individually or in the
aggregate) have a Material Adverse Effect. Each of such permits, licenses,
registrations and authorizations is in full force and effect and each of the
Borrower and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply therewith would not (either individually or in the aggregate) have a
Material Adverse Effect.
In addition:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint is pending, no
penalty has been assessed and no investigation or review is pending or,
to the Borrower's knowledge, threatened by any governmental entity (or
other entity with jurisdiction over the Parks) with respect to any
alleged failure by the Borrower or any of its Subsidiaries to have any
environmental, health or safety permit, license, registration or other
authorization required under any Environmental Law in connection with
the conduct of the business of the Borrower or any of its Subsidiaries
or with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by the Borrower or any of its Subsidiaries in each
case that (either individually or in the aggregate) which would
materially adversely affect the operations of any Park.
(b) Neither the Borrower nor any of its Domestic Subsidiaries
owns, operates or leases on the date hereof a treatment, storage or
disposal facility requiring a permit under the Resource Conservation and
Recovery Act of 1976, as amended, or, as to the Borrower and all of its
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Subsidiaries, under any comparable state or local statute; and none of
the conditions set forth below exists that would (either individually or
in the aggregate) materially adversely affect the operations of any Park
or have a Material Adverse Effect:
(i) no polychlorinated biphenyls (PCB's) are or have been
present at any domestic site or facility now or previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or
has been present at any domestic site or facility now or
previously owned, operated or leased by the Borrower or any of
its Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any
site or facility now operated or leased by the Borrower or any of
its Subsidiaries and, with respect to any domestic site or
facility, previously owned, operated or leased by the Borrower or
any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or
under any site or facility now owned, operated or leased by the
Borrower or any of its Subsidiaries and, with respect to any
domestic site or facility, previously owned, operated or leased
by the Borrower or any of its Subsidiaries, in each case, in a
reportable quantity established by statute, ordinance, rule,
regulation or order; and
(v) no Hazardous Materials have been otherwise Released
at, on or under any site or facility now owned, operated or
leased by the Borrower or any of its Subsidiaries and, with
respect to any domestic site or facility, previously owned,
operated or leased by the Borrower or any of its Subsidiaries
that, in either case, would (either individually or in the
aggregate) have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Domestic Subsidiaries has
transported or arranged for the transportation of any Hazardous Material
to any location that is listed on the National Priorities List ("NPL")
---
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), listed for possible
------
inclusion on the NPL by the Environmental Protection Agency Credit
Agreement in the Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"),
-------
or on any similar state or local list or that is the subject of Federal,
state or local enforcement actions or other investigations that may lead
to Environmental Claims against the Borrower or any of its Subsidiaries,
in any such case that would (either individually or in the aggregate)
materially adversely affect the operations of any Park or have a
Material Adverse Effect.
(d) As of the date hereof, no Hazardous Material generated by the
Borrower or any of its Domestic Subsidiaries has been recycled, treated,
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stored, disposed of or Released by the Borrower or any of its Domestic
Subsidiaries at any location other than those listed in Schedule III,
Part 2.
(e) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Borrower or any of its
Subsidiaries and no site or facility now or previously owned, operated
or leased by the Borrower or any of its Domestic Subsidiaries is listed
or, to Borrower's knowledge, proposed for listing on the NPL, CERCLIS or
any similar state list of sites requiring investigation or clean-up, in
any such case that would (either individually or in the aggregate)
materially adversely affect the operations of any Park or have a
Material Adverse Effect.
(f) No Liens have arisen under or pursuant to any Environmental
Laws on any site or facility owned, operated or leased by the Borrower
or any of its Subsidiaries, and no government action has been taken or
is in process that could subject any such site or facility to such Liens
in any such case to the extent such Lien secured obligations (or would
secure obligations) in an amount in excess of $500,000, and neither the
Borrower nor any of its Subsidiaries would be required to place any
notice or restriction relating to the presence of Hazardous Materials at
any site or facility owned by it in any deed to the real Property on
which such site or facility is located, which would adversely affect the
operation of any Park.
(g) All environmental investigations, studies, audits, tests,
reviews or other similar analyses conducted by or that are in the
possession of the Borrower or any of its Subsidiaries in relation to
facts, circumstances or conditions at or affecting any site or facility
now or previously owned, operated or leased by the Borrower or any of
its Subsidiaries and that could result in a Material Adverse Effect have
been made available to the Lenders, including the environmental surveys
and assessments set forth in Schedule III, Part 1.
8.09. Compliance with Laws and Agreements. Each of the Borrower
-----------------------------------
and its Subsidiaries is in compliance with all laws, regulations and orders of
any governmental authority applicable to it or its Property and all indentures,
agreements and other instruments binding upon it or its Property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
8.10. Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11. Public Utility Holding Company Act. Neither the Borrower
----------------------------------
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
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8.12. Taxes. The Borrower and its Domestic Subsidiaries are
-----
members of an affiliated group of corporations filing consolidated returns for
Federal income tax purposes, of which the Borrower is the "common parent"
(within the meaning of Section 1504 of the Code) of such group. The Borrower and
its Subsidiaries have filed all Federal income tax returns (in the case of
Domestic Subsidiaries) and all other material tax returns (in the case of all
Subsidiaries) that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries. The charges, accruals and reserves on-the books of
the Borrower and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Borrower, adequate.
8.13. ERISA. Each Plan, and, to the knowledge of the Borrower,
-----
each Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no ERISA
Event has occurred and is continuing as to which the Borrower would be under an
obligation to furnish a report to the Lenders under Section 9.02(c).
8.14. True and Complete Disclosure. The information, reports,
----------------------------
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole (including the Information Memorandum) do not
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading, provided that, with
--------
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time. All written information furnished after the date
hereof by the Borrower and its Subsidiaries to the Administrative Agent and the
Lenders in connection with this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified.
There is no fact known to the Borrower that could have a Material Adverse Effect
that has not been disclosed herein, in the other Loan Documents or in a report,
financial statement, exhibit, schedule, disclosure letter or other writing
furnished to the Lenders for use in connection with the transactions
contemplated hereby or thereby.
8.15. Use of Credit. Neither the Borrower nor any of its
-------------
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any Loan hereunder will be used to buy or carry any Margin Stock.
8.16. Debt Agreements and Liens.
-------------------------
(a) Part A of Schedule II is a complete and correct list of each
credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
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Indebtedness to, or guarantee of Indebtedness by, the Borrower or any of its
Subsidiaries outstanding on the date hereof, the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $100,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of Schedule II; the
aggregate of all such Indebtedness, the principal or face amount of which is
under $100,000 and which is accordingly not so listed does not exceed $250,000.
(b) Part B of Schedule II is a complete and correct list of each
Lien securing Indebtedness of any Person outstanding on the date hereof, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000 and covering any Property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the Property covered by each such Lien is correctly described
in Part B of Schedule II.
8.17. Capitalization. The authorized capital stock of the
--------------
Borrower consists, on the date hereof, of an aggregate of 90,500,000 shares
consisting of (i) 90,000,000 shares of common stock, par value $.05 per share,
of which 18,873,111 shares were issued and outstanding as of December 31, 1997
(and 26,345 shares of which were held in treasury as at said date), each of
which shares is fully paid and nonassessable and (ii) 500,000 shares of
preferred stock, of which none are issued and outstanding on the date hereof
(and no shares of which were held in treasury), each of which shares is fully
paid and nonassessable. As of the date hereof, (x) except for (i) warrants held
by the chief executive officer of the Borrower, (ii) options issued pursuant to
employee plans and a Rights Plan dated January 12, 1998 with Bank One Trust Co.,
N.A., (iii) contingent earnouts payable in stock pursuant to the Walibi
Acquisition Agreement and the Stock Purchase Agreement dated as of September 26,
1997 among the Borrower, Kentucky Kingdom Inc., Xxxx-Xxxxxxxxx Enterprises LLC
and Xxxxxx X. Xxxx, as amended, with respect to the Kentucky Kingdom Park and
(iv) unissued restricted shares of common stock that may be issued at the
discretion of the board of directors of the Borrower pursuant to employment
contracts with certain senior officers, there are no outstanding Equity Rights
with respect to the Borrower and (y) there are no outstanding obligations of the
Borrower or any of its Subsidiaries to repurchase, redeem, or otherwise acquire
any shares of capital stock of the Borrower nor are there any outstanding
obligations of the Borrower or any of its Subsidiaries to make payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market value or equity value of the Borrower or any
of its Subsidiaries.
8.18. Subsidiaries and Investments.
----------------------------
(a) Set forth in Part A of Schedule IV is a complete and correct
list of all of the Subsidiaries of the Borrower as of the date hereof (other
than Inactive Subsidiaries, as to which the Borrower makes no representation or
warranty), together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
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such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule IV, as of
the date hereof, (x) each of the Borrower and its Subsidiaries owns, free and
clear of Liens (other than Liens created pursuant to the Security Documents),
and has the unencumbered right to vote, all outstanding ownership interests in
each Person shown to be held by it in Part A of Schedule IV, (y) all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule IV is a complete and correct
list of all Investments (other than Investments disclosed in Part A of Schedule
IV or of the type referred to in clauses (b), (c), (d), (e) or (f) of Section
9.08) held by the Borrower or any of its Subsidiaries in any Person on the date
hereof and, for each such Investment, (x) the identity of the Person or Persons
holding such Investment and (y) the nature of such Investment. Except as
disclosed in Part B of Schedule IV, each of the Borrower and its Subsidiaries
owns, free and clear of all Liens (other than Liens created pursuant to the
Security Documents), all such Investments.
(c) None of the Subsidiaries of the Borrower is, on the date
hereof, subject to any indenture, agreement, instrument or other arrangement
restricted under in Section 9.15(c).
(d) Each of the Subsidiaries of the Borrower on the date hereof
(other than certain of the Inactive Subsidiaries, Premier Parks Merger
Corporation, a Delaware corporation and PPStar I, Inc., a Delaware corporation)
is a "Restricted Subsidiary" under and as defined in the 1995 Senior Notes
Indenture and the 1997 Senior Notes Indenture.
8.19. Parks; Real Property. Set forth in Part A of Schedule V is
--------------------
a complete and correct list of all of the amusement and attraction parks owned
by the Obligors on the date hereof. Set forth in Part B of Schedule V is a
complete and correct list, as of the date hereof of all of the real Property
interests held by the Borrower and its Subsidiaries, indicating in each case
whether the respective Property is owned or leased, the identity of the owner or
lessee and the location of the respective Property.
8.20. Insurance. Set forth on Schedule VII is a complete and
---------
correct description of all insurance maintained by the Obligors as of the date
hereof. As of the date hereof, all of such insurance is in full force and effect
and no premiums are past due in respect thereof.
8.21. Labor Maters. There are no strikes pending or threatened
------------
against the Borrower or any Subsidiary other than strikes that could not
reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect. The hours worked and payment made to employees of the
Borrower and each Subsidiary have not been in violation in any respect of the
Fair Labor Standards Act or any other similar applicable law other than
violations that could not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect. All material payments due from
the Borrower or any Subsidiary, or for which any material claim may be made
against the Borrower or any Subsidiary, on account of wages and employee health
and welfare insurance and other benefits have been paid or accrued as a
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liability on the books of the Borrower or such Subsidiary. The consummation of
the transactions contemplated hereunder will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary (or any
predecessor) is a party or by which the Borrower or any Subsidiary (or any
predecessor) is bound, other than collective bargaining agreements that,
individually or in the aggregate, are not material to the Borrower and the
Subsidiaries taken as a whole.
8.22. Solvency. Immediately after the consummation of the
--------
transactions contemplated hereunder and immediately following the making of each
Loan made on the Closing Date and after giving effect to the application of the
proceeds of such Loans, (i) the aggregate value of all Properties of the
Borrower and its Subsidiaries at their present fair saleable value (i.e., the
amount that may be realized within a reasonable time, considered to be six
months to one year, either through collection or sale at the regular market
value, conceiving the latter as the amount that could be obtained for the
Property in question within such period by a capable and diligent businessman
from an interested buyer who is willing to purchase under ordinary selling
conditions), exceed the amount of all debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of the
Borrower and its Subsidiaries; (ii) the Borrower and its Subsidiaries will not,
on a consolidated basis, have an unreasonably small capital with which to
conduct their business operations as heretofore conducted; and (iii) the
Borrower and its Subsidiaries will have, on a consolidated basis, sufficient
cash flow to enable them to pay their debts as they mature.
Section 9. Covenants of the Borrower. The Borrower covenants and
-------------------------
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Borrower hereunder:
9.01. Financial Statements and Other Information. The Borrower
------------------------------------------
shall deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower:
(x) consolidated statements of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries for
such fiscal year and the related consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the
corresponding consolidated figures for the preceding fiscal year,
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such consolidated financial statements fairly present
the consolidated financial condition and results of operations of
the Borrower and its Subsidiaries as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect
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that, in making the examination necessary for their opinion,
nothing came to their attention that caused them to believe that
the Borrower was not in compliance with Section 9.10, insofar as
such Section relates to accounting matters,
(y) consolidating statements of operations of the Borrower
and its Subsidiaries for such fiscal year, accompanied by a
certificate of a Responsible Officer of the Borrower, which
certificate shall state that such consolidating financial
statements fairly present the respective individual
unconsolidated financial condition and results of operations of
the Borrower and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal
year, and
(z) park-level statements of operating data (including
revenue and expense items and showing the calculation of EBITDA,
or equivalent, for the respective Park) for such fiscal year for
each of the Parks of the Borrower and its Subsidiaries, in each
case prepared in accordance with the Borrower's internal
accounting practices in form and detail substantially similar to
the corresponding statements set forth in the Information
Memorandum;
(b) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Borrower:
(x) consolidated statements of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries for
such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the related
consolidated balance sheets of the Borrower and its Subsidiaries,
as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the
corresponding periods in the preceding fiscal year (except that,
in the case of balance sheets, such comparison shall be to the
last day of the prior fiscal year), accompanied by a certificate
of a Responsible Officer of the Borrower, which certificate shall
state that such consolidated financial statements fairly present
the consolidated financial condition and results of operations of
the Borrower and its Subsidiaries, in each case in accordance
with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments), and
(y) park-level statements of operating data (including
revenue and expense items and showing the calculation of EBITDA,
or equivalent, for the respective Park) for the period from the
beginning of such fiscal year to the end of such fiscal quarter
and setting forth in comparative form the figures for the
corresponding period in the preceding fiscal year, in each case
prepared in accordance with the Borrower's internal accounting
practices in form and detail substantially similar to the
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corresponding statements set forth in the Information Memorandum;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section 9.01, a certificate of a Responsible
Officer of the Borrower (i) to the effect that no Default has occurred
and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that
the Borrower has taken or proposes to take with respect thereto) and
(ii) setting forth in reasonable detail the computations necessary to
determine whether the Borrower was in compliance with Sections 9.08(k),
9.09 or 9.10 as of the end of the respective quarterly fiscal period or
fiscal year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Borrower shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(e) promptly upon receipt thereof, copies of any management
letters prepared by the Borrower's independent public accountants with
respect to the audit of the financial statements of the Borrower and its
Subsidiaries;
(f) within 31 days after the beginning of each fiscal year, a
detailed pro forma annual operating budget for such fiscal year in form
and detail satisfactory to the Administrative Agent;
(g) within five Business Days after the end of each of the months
of June, July, August, September and October, a performance report
detailing on a park-by-park basis attendance and revenue for the
preceding month and showing a comparison to budget and to the same
period in the prior year; and
(h) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA), or compliance with the terms of this Agreement, as
any Lender or the Administrative Agent may reasonably request.
9.02. Notices of Material Events. The Borrower will furnish the
--------------------------
following to the Administrative Agent and each Lender in writing:
(a) promptly after any executive officer of the Borrower has
actual knowledge of facts that would give him or her reason to believe
that any Default has occurred, notice of such Default;
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(b) as soon as any executive officer of the Borrower has actual
knowledge of the facts that would give him or her reason to know of the
occurrence thereof, prompt notice of all legal or arbitral proceedings,
and of all proceedings by or before any governmental or regulatory
authority or agency, and of any material development in respect of such
legal or other proceedings, affecting the Borrower or any of its
Subsidiaries that, if adversely determined, could reasonably be expected
to result in aggregate liabilities or damages in excess of $2,500,000;
(c) as soon as possible, and in any event within ten days after
the Borrower knows or has reason to believe that any ERISA Event has
occurred or exists, notice of the occurrence of such ERISA Event and a
copy of any report or notice required to be filed with or given to the
PBGC by the Borrower or an ERISA Affiliate with respect to such ERISA
Event, if such ERISA Event could reasonably be expected to result in
aggregate liabilities in excess of $2,500,000;
(d) prompt notice of the assertion of any Environmental Claim by
any Person against, or with respect to the activities of, the Borrower
or any of its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation
that, if adversely determined, would not (either individually or in the
aggregate) result in remediation costs of less than $500,000 or
adversely affect the operation of any Park; and
(e) prompt notice of any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.02 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth the details of
the event or development requiring such notice and any action taken or proposed
to be taken with respect thereto.
9.03. Existence, Etc. The Borrower will, and will cause each of
--------------
its Subsidiaries to:
(a) preserve and maintain its legal existence and all material
permits, licenses and other governmental authorizations necessary to
enable it to operate each of its Parks (other than seasonal permits and
liquor licenses, which it anticipates will be obtained in the normal
course), provided that nothing in this Section 9.03 shall prohibit any
--------
transaction expressly permitted under Section 9.05;
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could (either individually or
in the aggregate) have a Material Adverse Effect;
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(c) pay and discharge all Federal income taxes and all other
material taxes, assessments and governmental charges or levies imposed
on it or on its income or profits or on any of its Property prior to the
date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate reserves
are being maintained;
(d) maintain and preserve all of its Properties material to the
conduct of the business and operations of the Borrower and its
Subsidiaries (taken as a whole) in good working order and condition;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, upon reasonable notice and during normal business hours, to
examine, copy and make extracts from its books and records, to inspect
any of its Properties, and to discuss its business and affairs with its
officers and the general managers of its Parks, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
9.04. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, in amounts and against such losses and risks as the
Borrower shall from time to time reasonably determine is sufficient based upon
its experience and industry practice to protect the Borrower and its
Subsidiaries and their respective businesses, provided that the Borrower will in
--------
any event maintain (with respect to itself and each of its Domestic
Subsidiaries):
(1) Casualty Insurance -- insurance against loss or damage
------------------
covering all of the tangible real and personal Property and improvements
of the Borrower and each of its Subsidiaries by reason of any Peril (as
defined below) in such amounts (subject to (x) in the case of general
liability policies, per occurrence deductibles (or self-insurance
retentions) not exceeding $250,000, and (y) in the case of Property
insurance deductibles, not exceeding $300,000 or, in each case, such
higher deductible as shall be reasonably satisfactory to the Majority
Lenders) as shall be reasonable and customary and sufficient to avoid
the insured named therein from becoming a co-insurer of any loss under
such policy but in any event in an amount (i) in the case of fixed
assets and equipment (including, without limitation, vehicles), at least
equal to 75% of the actual replacement cost of such assets (including,
without limitation, foundation, footings but excluding excavation
costs), subject to deductibles as aforesaid and (ii) in the case of
inventory, not less than the fair market value thereof, subject to
deductibles as aforesaid.
(2) Automobile Liability Insurance for Bodily Injury and Property
-------------------------------------------------------------
Damage -- insurance against liability for bodily injury and Property
------
damage in respect of all vehicles (whether owned, hired or rented by the
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Borrower or any of its Subsidiaries) at any time located at, or used in
connection with, its Properties or operations in such amounts as are
then customary for vehicles used in connection with similar Properties
and businesses, but in any event to the extent required by applicable
law.
(3) Comprehensive General Liability Insurance -- insurance
-----------------------------------------
against claims for bodily injury, death or Property damage occurring on,
in or about the Properties (and adjoining streets, sidewalks and
waterways, but only to the extent of the legal liability of the Borrower
and its Subsidiaries therefor) of the Borrower and its Subsidiaries, in
such amounts as are then customary for Property similar in use in the
jurisdictions where such Properties are located (subject to deductibles
not exceeding $300,000, or such higher deductible as shall be reasonably
satisfactory to the Majority Lenders).
(4) Workers' Compensation Insurance -- workers, compensation
-------------------------------
insurance (including, without limitation, Employers' Liability
Insurance) to the extent required by applicable law.
(5) Product Liability Insurance -- insurance against claims for
---------------------------
bodily injury, death or Property damage resulting from the use of
products sold by the Borrower or any of its Subsidiaries in such amounts
as are then customarily maintained by responsible persons engaged in
businesses similar to that of the Borrower and its Subsidiaries (subject
to deductibles not exceeding $300,000, or such higher deductible as
shall be reasonably satisfactory to the Majority Lenders).
(6) Business Interruption Insurance -- insurance against loss of
-------------------------------
operating income (in an aggregate amount not less than $40,000,000, as
to the Borrower and its Subsidiaries as a whole, and subject to a
deductible, or self-insured amount, not in excess of $300,000, or such
higher deductible as shall be reasonably satisfactory to the Majority
Lenders) by reason of any Peril.
Such insurance shall be written by financially responsible companies selected by
the Borrower and having an A. M. Best rating of "A-" or better and being in a
financial size category of VIII or larger, or by other companies reasonably
acceptable to the Majority Lenders, and (other than workers' compensation) shall
name the Administrative Agent as loss payee (to the extent covering risk of loss
or damage to tangible Property) and as an additional named insured as its
interests may appear (to the extent covering any other risk). Each policy
referred to in this Section 9.04 shall provide that it will not be canceled or
reduced, or allowed to lapse without renewal, except after not less than 30
days' notice to the Administrative Agent and shall also provide that the
interests of the Administrative Agent and the Lenders shall not be invalidated
by any act or negligence of the Borrower or any Person having an interest in any
Property covered by a mortgage in favor of the Administrative Agent nor by
occupancy or use of any such Property for purposes more hazardous than permitted
by such policy nor by any foreclosure or other proceedings relating to such
Property. The Borrower will advise the Administrative Agent promptly of any
policy cancellation, reduction or amendment.
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On each date that is the day 10 days prior to the anniversary
date (the "Delivery Date") of any insurance policy of the Borrower or any of its
-------------
Subsidiaries (the "Anniversary Date") (commencing with the first Delivery Date
----------------
after the date hereof), the Borrower will deliver to the Administrative Agent
certificates of insurance evidencing that all insurance required to be
maintained by the Borrower hereunder will be in effect through the next
Anniversary Date in the calendar year following the current Delivery Date,
subject only to the payment of premiums as they become due, provided that not
--------
less than 45 days prior to such Anniversary Date the Borrower will provide
reasonable evidence to the Administrative Agent that it is in the process of
renewing such insurance policy for such period. In addition, the Borrower will
not modify any of the provisions of any policy with respect to casualty
insurance without delivering the original copy of the endorsement reflecting
such modification to the Administrative Agent accompanied by a written report of
AON Risk Services, Inc., or any other firm of independent insurance brokers of
nationally recognized standing, stating that, in their opinion, such policy (as
so modified) is in compliance with the provisions of this Section 9.04. The
Borrower will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04 unless
the Administrative Agent is the named insured thereunder, with loss payable as
provided herein. The Borrower will immediately notify the Administrative Agent
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Borrower under the
foregoing provisions of this Section 9.04, in the event the Borrower shall fail
to maintain in full force and effect insurance as required by the foregoing
provisions of this Section 9.04, then the Administrative Agent may, but shall
have no obligation so to do, procure insurance covering the interests of the
Lenders and the Administrative Agent in such amounts and against such risks as
the Administrative Agent (or the Majority Lenders) shall deem appropriate, and
the Borrower shall reimburse the Administrative Agent in respect of any premiums
paid by the Administrative Agent in respect thereof.
For purposes hereof, the term "Peril", means, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Borrower and its Subsidiaries are
located.
9.05. Prohibition of Fundamental Changes.
----------------------------------
(a) Mergers. The Borrower will not, nor will it permit any of its
-------
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), except that the Borrower may liquidate or dissolve
any Inactive Subsidiary.
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(b) Restrictions on Acquisitions. The Borrower will not, nor will
----------------------------
it permit any of its Subsidiaries to, acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person except for (i)
purchases of inventory and other Property to be sold or used in the ordinary
course of business, (ii) Investments permitted under Sections 9.05(e) and
9.08(k), (iii) Capital Expenditures (to the extent the making of such Capital
Expenditures will not result in a violation of any of the provisions of Section
9.10) and (iv) the Walibi Acquisition and Tender Offer.
(c) Restrictions on Sales. The Borrower will not, nor will it
---------------------
permit any of its Subsidiaries to consummate any Disposition.
(d) Sale and Leaseback. The Borrower will not, nor will it permit
------------------
any of its Subsidiaries to, enter into any transaction pursuant to which it
shall convey, sell, transfer or otherwise dispose of any Property and, as part
of the same transaction or series of transactions, rent or lease as lessee or
similarly acquire the right to possession or use of, such Property, or other
Property which it intends to use for the same purpose or purposes as such
Property, to the extent such transaction gives rise to Indebtedness, unless any
Indebtedness arising in connection with such transaction shall be permitted
under Section 9.07(f).
(e) Certain Permitted Transactions. Notwithstanding the foregoing
------------------------------
provisions of this Section 9.05:
(i) Intercompany Mergers. Any Subsidiary of the Borrower may be
--------------------
merged or consolidated with or into: (i) the Borrower if the Borrower
shall be the continuing or surviving corporation or (ii) any other
Domestic Subsidiary of the Borrower; provided that if any such
transaction shall be between a Subsidiary and a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or surviving
corporation.
(ii) Intercompany Dispositions. The Borrower or any Subsidiary of
-------------------------
the Borrower may sell, lease, transfer or otherwise dispose of any or
all of its Property (upon voluntary liquidation or otherwise) to the
Borrower or a Wholly Owned Subsidiary of the Borrower.
(iii) Subsequent Acquisitions. The Borrower or any Wholly Owned
-----------------------
Subsidiary of the Borrower which is a Domestic Subsidiary may acquire
any amusement or attraction park, and the related assets, of any other
Person (whether by way of purchase of assets or stock, by merger or
consolidation or otherwise) after the date hereof (each, a "Subsequent
----------
Acquisition") with the proceeds of Subordinated Indebtedness, issuances
-----------
of equity and/or the proceeds of Loans hereunder to the extent permitted
under this Agreement so long as:
(A) (i) the aggregate amount of proceeds of Subordinated
Indebtedness used to fund Subsequent Acquisitions would not
exceed $100,000,000, (ii) the Borrower shall be in compliance
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with Section 9.10 at the time of and after giving pro forma
effect to any such Subsequent Acquisition, and (iii) the Borrower
shall have delivered to the Administrative Agent, at least ten
Business Days prior to the date of any such Subsequent
Acquisition, a certificate of a Responsible Officer of the
Borrower setting forth computations in reasonable detail
demonstrating satisfaction of the foregoing conditions as at the
date of such certificate;
(B) such Subsequent Acquisition (if by purchase of assets,
merger or consolidation) shall be effected in such manner so that
the acquired business, and the related assets, are owned either
by the Borrower or a Wholly Owned Subsidiary of the Borrower and,
if effected by merger or consolidation involving the Borrower,
the Borrower shall be the continuing or surviving entity and, if
effected by merger or consolidation involving a Wholly Owned
Subsidiary of the Borrower, a Wholly Owned Subsidiary shall be
the continuing or surviving entity;
(C) the Borrower shall deliver to the Administrative Agent
(which shall promptly forward copies thereof to each Lender (i)
as soon as possible and in any event no later than ten days prior
to the consummation of each such Subsequent Acquisition (or such
earlier date as shall be five Business Days after the execution
and delivery thereof), copies of the respective agreements or
instruments pursuant to which such Subsequent Acquisition is to
be consummated (including, without limitation, any related
management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments and
all other material ancillary documents to be executed or
delivered in connection therewith and (ii) promptly following
request therefor (but in any event within three Business Days
following such request), copies of such other information or
documents (including, without limitation, environmental risk
assessments) relating to such Subsequent Acquisition as the
Administrative Agent or the Majority Lenders shall have
reasonably requested (and which is available, or obtainable
within such period by the Borrower with reasonable efforts);
(D) to the extent applicable, the Borrower shall have
complied with the provisions of Section 9.15, including, without
limitation, to the extent not theretofore delivered, delivery to
the Administrative Agent of (x) the certificates evidencing the
capital stock of any new Domestic Subsidiary formed or acquired
in connection with such Subsequent Acquisition, accompanied by
undated stock powers executed in blank, and (y) the agreements,
instruments, opinions of counsel and other documents required
under Section 9.15;
(E) to the extent requested by the Borrower, the Borrower
and the Majority Lenders shall have agreed to a supplement to
Schedule VIII setting forth pro forma adjustments to be made in
determining EBITDA after giving effect to such Subsequent
Acquisition; and
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(F) immediately prior to such Subsequent Acquisition and
after giving effect thereto, no Default shall have occurred and
be continuing.
(iv) Premier Merger. The Borrower may on or before September 30,
--------------
1998, pursuant to an agreement and plan of merger and in accordance with
Section 251(g) of the Delaware General Corporation Law, merge with a
wholly owned subsidiary of Holdings whereby Borrower shall become a
wholly owned subsidiary of Holdings and be renamed "Premier Parks
Operations Inc." (the "Premier Merger"), subject to the following
--------------
conditions precedent:
(A) Holdings shall have entered into a tax sharing
agreement with each of its direct and indirect Subsidiaries on
terms reasonably satisfactory to the Administrative Agent; and
(B) the Borrower will, and will cause each of the other
Obligors to, take such action (including, but not limited to, the
execution and delivery of amendment to this Agreement) as shall
reasonably be requested by the Administrative Agent to effectuate
the purposes and objectives of the parties to this Agreement and
the surviving entity "Premier Parks Operations Inc." shall assume
all the obligations of the Borrower under this Agreement pursuant
to an instrument satisfactory to the Administrative Agent as if
it had been the Borrower on the date of this Agreement.
(v) Other Acquisitions. The Borrower or any Subsidiary of the
------------------
Borrower may acquire (whether through an acquisition, swap or exchange)
any amusement or attraction park, and the related assets thereof,
pursuant to the Marine World Agreements.
(vi) Other Sales. The Borrower or any Subsidiary of the Borrower
-----------
may sell (whether through a sale, swap or exchange) any timeshare in any
of the campground parks.
9.06. Liens. The Borrower will not, nor will it permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule II;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or the affected
Subsidiaries, as the case may be, in accordance with GAAP or, in the
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case of any Foreign Subsidiary, generally accepted accounting principles
in effect from time to time in the jurisdiction of organization of such
Foreign Subsidiary;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 30
days or that are being contested in good faith and by appropriate
proceedings, and Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default under
clause (j) of Section 10;
(e) pledges or deposits under workers' compensation, unemployment
insurance and other social security legislation (other than ERISA);
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (including any precautionary
Uniform Commercial Code financing statements filed by a lessor with
respect to any equipment lease), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the Property
subject thereto or interfere in any material respect with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(h) Liens securing Purchase Money Indebtedness or Capital Lease
Obligations to the extent such Indebtedness is permitted to be incurred
under Section 9.07(f); and
(i) Liens pursuant to leases or pursuant to the Marine World
Agreements entered into in the ordinary course of business by the
Borrower and its Subsidiaries that could not reasonably be expected to
have a Material Adverse Effect.
9.07. Indebtedness. The Borrower will not, nor will it permit
------------
any of its to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Part A of Schedule I, and any Indebtedness incurred to refinance any
such outstanding Indebtedness, provided that such refinancing
--------
Indebtedness does not exceed the amount of Indebtedness being so
refinanced and any costs associated with such refinancing;
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(c) Subordinated Indebtedness of the Borrower incurred in
accordance with Section 9.11, so long as (except in the case of
Subordinated Indebtedness, the proceeds of which are used to make
Subsequent Acquisitions pursuant to Section 9.05(e)(iii)) immediately
upon receipt by the Borrower of the Net Available Proceeds thereof the
Borrower shall prepay the Loans to the extent required under Section
2.10(b);
(d) Indebtedness of the Borrower or any Subsidiaries of the
Borrower to the Borrower or to other Subsidiaries of the Borrower, and
Guarantees by the Borrower or any of its Wholly Owned Subsidiaries of
obligations of the Borrower or any of its Wholly Owned Subsidiaries;
(e) Indebtedness in respect of New Senior Notes that are either
issued in exchange for the 1995 Senior Notes or the 1997 Senior Notes or
the proceeds of which are applied to the redemption or repurchase of the
1995 Senior Notes or the 1997 Senior Notes, so long as (i) the effective
interest rate in respect of the New Senior Notes is not greater than the
effective interest rate in respect of the 1995 Senior Notes or the 1997
Senior Notes, as the case may be, (ii) the covenants, events of default
and mandatory redemption, repurchase or prepayment provisions are not
more burdensome on the Borrower and its Subsidiaries, in any case, than
the 1995 Senior Notes Indenture or the 1997 Senior Notes Indenture,
(iii) the New Senior Notes are unsecured (and such Notes may be
Guaranteed by the Subsidiaries of the Borrower) and (iv) the final
maturity, and weighted average life to maturity, of the New Senior Notes
are not earlier than the corresponding maturities of the 1995 Senior
Notes and the 1997 Senior Notes, and (v) the other provisions of the New
Senior Notes would not have a material adverse effect upon the Lenders
or the Administrative Agent; and
(f) Indebtedness consisting of Purchase Money Indebtedness and
Capital Lease Obligations incurred after the date hereof in an aggregate
amount not in excess of $25,000,000 at any time outstanding.
9.08. Investments. The Borrower will not, nor will it permit
-----------
any of its Subsidiaries, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and identified in
Part B of Schedule
IV;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Wholly Owned Subsidiaries
which are Domestic Subsidiaries in the Borrower's Wholly Owned
Subsidiaries which are Domestic Subsidiaries, including Guarantees by
the Borrower or any of its Wholly Owned Subsidiaries which are Domestic
Subsidiaries of obligations of the Borrower or any of its Wholly Owned
-80-
Subsidiaries which are Domestic Subsidiaries;
(e) Investments by the Borrower's Wholly Owned Subsidiaries which
are Foreign Subsidiaries in other Wholly Owned Subsidiaries which are
Foreign Subsidiaries, including Guarantees by such Wholly Owned
Subsidiaries which are Foreign Subsidiaries of obligations of other
Wholly Owned Subsidiaries which are Foreign Subsidiaries;
(f) Investments by the Borrower and its Wholly Owned Subsidiaries
which are Domestic Subsidiaries in the Borrower's Wholly Owned
Subsidiaries which are Foreign Subsidiaries, including Guarantees by the
Borrower and its Wholly Owned Subsidiaries which are Domestic
Subsidiaries of obligations of the Borrower's Wholly Owned Subsidiaries
which are Foreign Subsidiaries, up to but not exceeding $20,000,000 at
any one time outstanding;
(g) Hedging Agreements, provided that when entering into any
--------
Hedging Agreement that at the time has, or at any time in the future may
give rise to, any credit exposure, the aggregate credit exposure under
all Hedging Agreements (including the Hedging Agreement being entered
into) shall not exceed $2,500,000;
(h) Disposition Investments received in connection with any
Disposition permitted under Section 9.05 or any Disposition to which the
Lenders shall have consented in accordance with Section 12.03;
(i) Investments consisting of acquisitions permitted under
Section 9.05(e);
(j) Investments in an aggregate amount of up to but not exceeding
$100,000 during any fiscal year in 000 Xxxx 00xx Xxxxxx Associates L.P.;
(k) additional Investments up to but not exceeding $25,000,000
in the aggregate;
(l) additional Investments in Walibi in connection with the
Walibi Acquisition or the Tender Offer prior to or in connection with
the successful completion of the Tender Offer;
(m) loans to officers, directors and employees of the Borrower or
any of its Subsidiaries in an aggregate amount (as to all such officers,
director and employees) up to $1,000,000 at any one time outstanding;
and
(n) Investments pursuant to the Marine World Agreements.
9.09. Restricted Payments. The Borrower will not, nor will it
-------------------
permit any of its Subsidiaries to, declare or make any Restricted Payment,
except that so long as at the time thereof and after giving effect thereto no
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Default shall have occurred and be continuing, the Borrower may from and after
the consummation of the Premier Merger:
(a) make a one-time Restricted Payment to Holdings in an amount
not to exceed $20,000,000 on the date of the consummation of the Premier
Merger;
(b) make Restricted Payments to Holdings in cash to enable
Holdings to pay out-of-pocket accounting fees, legal fees and other
administrative expenses incurred in the ordinary course of business
pursuant to any shared services allocation agreements; and
(c) make Restricted Payments to Holdings in respect of income tax
liabilities of the Borrower and its Subsidiaries in accordance with the
tax sharing agreement entered into at the time of the Premier Merger.
Nothing herein shall be deemed to prohibit the payment of
dividends by any Subsidiary of the Borrower to the Borrower or to any other
Subsidiary of the Borrower.
9.10. Certain Financial Covenants.
---------------------------
(a) Leverage Ratio. The Borrower will not permit the Leverage
--------------
Ratio to exceed the following respective ratios as at the last day of any fiscal
quarter during any of the following respective periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 1999 5.75 to 1
From September 30, 1999
through September 29, 2000 5.25 to 1
From September 30, 2000
through September 29, 2001 4.75 to 1
From September 30, 2001
and at all times thereafter 4.00 to 1
(b) Senior Secured Debt Ratio. The Borrower will not permit the
-------------------------
Senior Secured Debt Ratio to exceed the following respective ratios as at the
last day of any fiscal quarter during any of the following respective periods:
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Period Ratio
------ -----
From the Closing Date
through September 29, 1999 3.75 to 1
From September 30, 1999
through September 29, 2000 3.25 to 1
From September 30, 2000
through September 29, 2001 2.75 to 1
From September 30, 2001
and at all times thereafter 2.50 to 1
(c) Interest Coverage Ratio. The Borrower will not permit the
-----------------------
Interest Coverage Ratio to be less than the following respective ratios as at
the last day of any fiscal quarter during any of the following respective
periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 2000 2.00 to 1
From September 30, 2000
through September 29, 2001 2.50 to 1
From September 30, 2001
through September 29, 2002 2.75 to 1
From September 30, 2002
and at all times thereafter 3.00 to 1
(d) Fixed Charges Coverage Ratio. The Borrower will not permit
----- --------------
the Fixed Charges Coverage Ratio as of any date to be less than 1.10 to 1.
9.11. Subordinated Indebtedness. The Borrower may, after the date
-------------------------
of this Agreement, incur additional Indebtedness (i) for which the Borrower is
directly and primarily liable, (ii) that is subordinated to the obligations of
the Borrower to pay principal of and interest on the Loans, Notes, Reimbursement
Obligations and other obligations hereunder on terms of subordination
satisfactory to the Majority Lenders, and pursuant to documentation containing
other terms (including, without limitation, interest, amortization, mandatory
prepayments, covenants and events of default and that the maturity thereof be at
least one year after the Commitment Termination Date) in form and substance
satisfactory to the Majority Lenders, (iii) in respect of which none of its
Subsidiaries is contingently or otherwise obligated, (iv) if at the time of
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issuance of such Indebtedness and after giving effect thereto and to the
application of the proceeds thereof, the Borrower shall be in compliance with
Section 9.10 (the determination of compliance with such ratios to be calculated
on a pro forma basis as if such Indebtedness were incurred and the proceeds
thereof were so applied, in each case, at the beginning of such period, and the
Administrative Agent shall have received a certificate of a Responsible Officer
of the Borrower to such effect setting forth in reasonable detail the
computations necessary to determine such compliance) and (v) if immediately
prior thereto and after giving effect to the incurrence thereof, no Default
shall have occurred and be continuing, and the Administrative Agent shall have
received a certificate of a Responsible Officer of the Borrower to such effect.
9.12. Lines of Business. The Borrower will not, nor will it
-----------------
permit any of its Subsidiaries to, engage to any substantial extent in any line
or lines of business activity other than the business of owning and operating
amusement and attraction parks, and businesses related, ancillary or
complementary thereto.
9.13. Transactions with Affiliates. Except as expressly permitted
----------------------------
by this Agreement, the Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an Affiliate
(other than Investments permitted under Sections 9.08(d), 9.08(e) or 9.08(f));
(b) transfer, sell, lease, assign or otherwise dispose of any Property to an
Affiliate; (c) merge into or consolidate with or purchase or acquire Property
from an Affiliate (other than pursuant to the Premier Merger); or (d) enter into
any other transaction directly or indirectly with or for the benefit of an
Affiliate (including, without limitation, Guarantees and assumptions of
obligations of an Affiliate); provided that (x) any Affiliate who is an
--------
individual may serve as a director, officer or employee of the Borrower or any
of its Subsidiaries and receive reasonable compensation for his or her services
in such capacity, (y) the Borrower and its Subsidiaries may enter into
transactions (other than extensions of credit by the Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of inventory and other
Property in the ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as advantageous to the
Borrower and its Subsidiaries as the monetary or business consideration that
would obtain in a comparable transaction with a Person not an Affiliate and (z)
the Borrower and its Subsidiaries may enter into the shared services allocation
agreements and tax sharing agreements referred to in Sections 9.09(b) and
9.09(c).
9.14. Use of Proceeds, Etc. The Company will use the proceeds of
--------------------
the Loans hereunder to finance the cash portion of the Walibi Acquisition and
the Tender Offer, to pay for fees and expenses relating thereto, for general
corporate purposes, including working capital and for Capital Expenditures and
acquisitions permitted hereunder (in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations G, T, U and
X and the Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder); provided that neither the Administrative Agent nor any
--------
Lender shall have any responsibility as to the use of any of such proceeds.
-84-
9.15. Certain Further Assurances.
--------------------------
(a) Subsidiary Guarantors. The Borrower will take such action,
---------------------
and will cause each of its Subsidiaries (other than any Foreign Subsidiary or
any Inactive Subsidiary, unless such Inactive Subsidiary is also a "Note
Guarantor" (other than D.L. Holdings, Inc.) under the 1995 Senior Notes
Indenture, the 1997 Senior Notes Indenture or any indenture or other agreement
under which the New Senior Notes or subordinated obligations shall be issued) to
take such action, from time to time as shall be necessary to ensure that all
Subsidiaries of the Borrower (other than any Foreign Subsidiary or any Inactive
Subsidiary) are "Subsidiary Guarantors" hereunder. Without limiting the
generality of the foregoing, in the event that the Borrower or any of its
Subsidiaries shall form or acquire any new Subsidiary that shall constitute a
Subsidiary hereunder or in the event that any Inactive Subsidiary shall cease to
be an Inactive Subsidiary, the Borrower and its Subsidiaries will cause such new
Subsidiary (other than any Foreign Subsidiary) or former Inactive Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing
Party" under the Security Agreement pursuant to a Guarantee Assumption
Agreement;
(ii) cause such Subsidiary to take such action (including,
without limitation, delivering such shares of stock, executing and
delivering such Uniform Commercial Code financing statements as shall be
necessary to create and perfect valid and enforceable first priority
Liens on substantially all of the Property (including fixtures owned or
leased) of such new Subsidiary as collateral security for the
obligations of such new Subsidiary hereunder; and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 7.01 or as the
Administrative Agent shall have reasonably requested.
(b) Ownership of Subsidiaries. The Borrower will, and will cause
-------------------------
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that (i) each of its Subsidiaries (other than Walibi and any
Inactive Subsidiary) is a Wholly Owned Subsidiary and (ii) each Foreign
Subsidiary is directly owned by a Wholly Owned Subsidiary which is either a
Domestic Subsidiary or another Foreign Subsidiary, provided that if the Borrower
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shall hold at least 95% of the capital stock of Walibi upon consummation of the
Tender Offer, it will use all reasonable efforts thereafter to cause Walibi to
become a Wholly Owned Subsidiary. Without limiting the generality of the
requirements of paragraph (a) above, in the event that any additional shares of
stock shall be issued by any Domestic Subsidiary, the respective Obligor agrees
forthwith to deliver to the Administrative Agent pursuant to the Security
Agreement the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Security Agreement.
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(c) Certain Restrictions. The Borrower will not permit any of its
--------------------
Subsidiaries to enter into, after the date hereof, any indenture), agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property, other than any such prohibition or restraint (i) set
forth in any agreement providing for the disposition of Property (so long as
such prohibition or restraint relates only to the Property to be disposed of),
(ii) set forth in any of the Loan Documents or in the 1995 Senior Notes
Indenture or the 1997 Senior Notes Indenture or any indenture or agreement
pursuant to which New Senior Notes are issued and (iii) set forth in any real
property lease agreement, licenses, contracts entered into in the ordinary
course of business or the Marine World Agreements otherwise permitted hereunder
to the extent that such prohibition or restraint could not reasonably be
expected to result in a Material Adverse Effect.
9.16. Modifications of Certain Documents. The Borrower will not,
----------------------------------
without in each case the prior consent of the Administrative Agent (with the
approval of the Majority Lenders), consent to any modification, supplement or
waiver of:
(a) any of the provisions of any agreement, instrument or other
document evidencing or relating to Subordinated Indebtedness;
(b) any provision of the Senior Notes Indentures;
(c) its articles of incorporation or by-laws, except in
connection with the Premier Merger;
(d) any provision of the Marine World Agreements, the Walibi
Acquisition Agreement, any Subsequent Acquisition Agreement or any lease
with respect to any Park if (in the case of this clause (d)) such
modification, supplement or waiver would have a material adverse effect
upon the Lenders or the Administrative Agent.
9.17. Prepayment of Certain Indebtedness. The Borrower will not,
----------------------------------
nor will it permit any of its Subsidiaries to, purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of the Senior Notes or any
Subordinated Indebtedness, except for regularly scheduled payments, prepayments
or redemption's of principal and interest in respect thereof required pursuant
to the Senior Notes Indentures or pursuant to the instruments evidencing such
Subordinated Indebtedness, as the case may be. Notwithstanding the foregoing,
nothing herein shall be deemed to prohibit the Borrower from redeeming or
retiring up to an aggregate principal amount of $30,000,000 of the 1995 Senior
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Notes with the proceeds of capital contributions or advances to the Borrower
from Holdings after the consummation of the Premier Merger, or from redeeming or
retiring up to an aggregate principal amount of $41,666,000 of the 1997 Senior
Notes with the proceeds of capital contributions or advances to the Borrower
from Holdings after the consummation of the Premier Merger or from effecting any
exchange of New Senior Notes for 1995 Senior Notes or 1997 Senior Notes (or
refinancing 1995 Senior Notes or 1997 Senior Notes with the proceeds of New
Senior Notes) in accordance with the provisions of Section 9.07(e).
Section 10. Events of Default. If one or more of the following
events (herein called of "Events of Default") shall occur and be continuing:
-----------------
(a) the Borrower shall default in the payment when due (whether
at stated maturity or at mandatory or optional prepayment) of any
principal of any Loan or Reimbursement Obligation, or shall default for
three or more Business Days in the payment when due of any interest on
any Loan or any fee or any other amount payable by it hereunder or under
any other Loan Document;
(b) any representation, warranty or certification made or deemed
made herein or in any other Loan Document (or in any modification or
supplement hereto or thereto) by any obligor, or any certificate
furnished to any Lender, the Administrative Agent or the Arranger
pursuant to the provisions hereof or thereof, shall prove to have been
false or misleading as of the time made or furnished in any material
respect; or any representation or warranty made in the Walibi
Acquisition Agreement shall prove to have been false or misleading as of
the time made or furnished, in any such case that would (either
individually or in the aggregate) materially adversely affect the
operations of any Park or have a Material Adverse Effect;
(c) the Borrower shall default in the performance of any of its
obligations under any of Sections 9.02(a), 9.05, 9.06, 9.07, 9.08, 9.09,
9.10, 9.11, 9.13, 9.14, 9.15, 9.16 or 9.17 or any Obligor shall default
in the performance of any of its obligations under Section 4.02 of the
Security Agreement;
(d) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a) or (c) of this Section 10) or any other Loan
Document and such failure shall continue unremedied for a period of 30
days after notice thereof to the Borrower by the Administrative Agent or
any Lender (through the Administrative Agent);
(e) the Borrower or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $5,000,000 or more; or any Obligor shall
default in the payment when due of any amount aggregating $5,000,000 or
more under any Hedging Agreement;
(f) any event specified in any note, agreement, indenture or
other document evidencing or relating to any other Indebtedness
aggregating $5,000,000 or more of any Obligor shall occur if the effect
of such event is to cause, or (with the giving of any notice or the
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lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause, such Indebtedness to become due, or to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise), prior
to its stated maturity or to have the interest rate thereon reset to a
level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof; or any event specified
in any Hedging Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit, termination or liquidation payment or payments aggregating
$5,000,000 or more to become due;
(g) a proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition
or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the Borrower or
such Subsidiary or of all or any substantial part of its Property, or
(iii) similar relief in respect of the Borrower or such Subsidiary under
any law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 60 or more days; or an order for relief
against the Borrower or any of its Subsidiaries shall be entered in an
involuntary case under the Bankruptcy Code or any other applicable
bankruptcy, insolvency or similar laws;
(h) the Borrower or any of its Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all
or a substantial part of its Property, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under
the Bankruptcy Code or any other applicable bankruptcy, insolvency or
similar laws, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or any other
applicable bankruptcy, insolvency or similar laws or take any corporate
action for the purpose of effecting any of the foregoing;
(i) the Borrower or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due;
(j) a final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance) or of $15,000,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Borrower or any of its Subsidiaries and the same shall not
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be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 60 days from the
date of entry thereof and the Borrower or the relevant Subsidiary shall
not, within such period of 60 days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal;
(k) an event or condition specified in Section 9.02(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, the Borrower or any ERISA Affiliate shall incur or in the
opinion of the Majority Lenders shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the Majority
Lenders, would (either individually or in the aggregate) have a Material
Adverse Effect;
(l) there shall have been asserted against the Borrower or any of
its Subsidiaries an Environmental Claim that, in the judgment of the
Majority Lenders, is reasonably likely to be determined adversely to the
Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the
Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons liable in whole or in part therefor);
(m) any one or more of the following shall occur and be
continuing:
(i) any "Person" (as such term is used in Sections 13(d)
and 14(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act") is or becomes the beneficial owner (as defined in
------------
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the voting
stock of the Borrower;
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the Borrower's shareholders was
approved by a vote of a majority of the Borrower's directors then
still in office who either were directors at the beginning of
such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of the Borrower's directors then in office;
(iii) any change in control with respect to the Borrower
(or similar event, however denominated) shall occur under and as
defined in any indenture or other agreement in respect of
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Indebtedness in an aggregate principal amount of at least
$10,000,000 to which the Borrower is a party;
(iv) both Xxxxxx X. Xxxxx and Xxxx Story shall cease to be
actively involved in the day-to-day management and operation of
the Borrower and its Subsidiaries (unless Persons with
substantial knowledge and experience in the amusement and
attraction park industry reasonably acceptable to the Majority
Lenders have been appointed to replace one or both of them within
180 days thereof);
(v) from and after the consummation of the Premier Merger,
Holdings shall cease to own directly (x) 100% of the capital
stock of the Borrower owned by Holdings on the date of the
consummation of the Premier Merger or (y) at least 75% of the
outstanding voting capital stock of the Borrower; or
(vi) the Borrower shall not have acquired at least 51% of
the shares of Walibi on or prior to the date that is 60 days
after the consummation of the Walibi Acquisition;
(n) the Liens created by the Security Documents shall at any time
not constitute valid and perfected Liens on the collateral intended to
be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than
Liens permitted under Section 9.06 or under the respective Security
Documents), or, except for expiration in accordance with its terms, any
of the Security Documents shall for whatever reason be terminated or
cease to be in full force and effect, or the enforceability thereof
shall be contested by any Obligor; or
(o) from and after the consummation of the Premier Merger,
Holdings shall have created, incurred or assumed a consensual pledge or
security interest in respect of any of the capital stock of the Borrower
owned by it;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (g) or (h) of this Section 10 with respect to any Obligor, the
Administrative Agent may (and, if requested by the Majority Lenders, shall), by
notice to the Borrower, terminate the Commitments and/or declare the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06) to be forthwith due and payable, whereupon
such amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor; and (2) in the case of the occurrence of an Event of
Default referred to in clause (g) or (h) of this Section 10 with respect to any
Obligor, the Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
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hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of
any Event of Default, the Borrower agrees that it shall, if requested by the
Administrative Agent or the Majority Lenders through the Administrative Agent
(and, in the case of any Event of Default referred to in clause (g) or (h) of
this Section 10 with respect to any Obligor, forthwith, without any demand or
the taking of any other action by the Administrative Agent or any Lender)
provide cover for the Letter of Credit Liabilities by paying to the
Administrative Agent immediately available funds in an amount equal to the then
aggregate Undrawn Face Amount of all Letters of Credit, which funds shall be
held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
Section 11. The Administrative Agent and Arranger.
11.01. Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be
a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or
in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by the
Borrower or any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document; and
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(d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other Loan Document or under any
other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Borrower
to such assignment or transfer (to the extent required by Section 12.06(b)).
11.02. Reliance by Administrative Agent. The Administrative Agent
--------------------------------
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
11.03. Defaults. The Administrative Agent shall not be deemed to
--------
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section
11.07) take such action with respect to such Default as shall be directed by the
Majority Lenders, provided that, unless and until the Administrative Agent shall
--------
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders.
11.04. Rights as a Lender. With respect to its Commitments and
------------------
the Loans made by it, LCPI (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. LCPI (and any successor acting as Administrative Agent) and
its affiliates may (without having to account therefor to any Lender) accept
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deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and LCPI and its affiliates (and any such successor) and its affiliates
may accept fees and other consideration from the Obligors for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
11.05. Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent and the Arranger (to the extent not reimbursed under
Section 12.04, but without limiting the obligations of the Borrower under
Section 12.04) ratably in accordance with the aggregate principal amount of the
Loans and Reimbursement Obligations held by the Lenders (or, if no Loans or
Reimbursement Obligations are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent or the Arranger (including by
any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses that the Borrower is obligated to pay under Section 12.04,
but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
--------
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
11.06. Non-Reliance on Administrative Agent, the Arranger and
------------------------------------------------------
Other Lenders. Each Lender agrees that it has, independently and without
-------------
reliance on the Administrative Agent, the Arranger or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement or under any other Loan Document. Neither the Administrative Agent nor
the Arranger shall be required to keep itself informed as to the performance or
observance by any obligor of this Agreement or any of the other Loan Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Borrower or any of its Subsidiaries.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
under the Security Documents, neither the Administrative Agent nor the Arranger
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent, the Arranger or any of their
respective affiliates.
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11.07. Failure to Act. Except for action expressly required of
--------------
the Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
11.08. Resignation or Removal of Administrative Agent. Subject to
----------------------------------------------
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall, after consultation with the
Borrower, have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New
York with a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
11.09. Consents under Other Loan Documents. Except as otherwise
-----------------------------------
provided in Section 12.03 with respect to this Agreement, the Administrative
Agent may, with the prior consent of the Majority Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Loan
Documents, provided that, without the prior consent of each Lender, the
--------
Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
--------
the Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents,
except that at no such consent shall be required, and the Administrative Agent
is hereby authorized, to release any Lien covering Property that is the subject
of either a disposition of Property permitted hereunder or a disposition to
which the Majority Lenders have consented.
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11.10. Arranger. Except as provided in this Section 11 and in
--------
Section 12.06(b), the Arranger shall not have any rights or obligations under
this Agreement or in connection with the syndication of the Commitments
hereunder, other than in its capacity as a "Lender" hereunder.
Section 12. Other Provisions.
12.01. Notices. All notices, requests and other communications
-------
provided for herein and in the Security Documents (including, without
limitation, any modifications of, or waivers or consents under, this Agreement)
shall be given or made in writing (including, without limitation, by telecopy),
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (below the name of the Borrower, in the
case of any Subsidiary Guarantor) or if to a Lender at its address set forth in
its Administrative Questionnaire, or, as to any party, at such other address as
shall be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12.02. Waiver. No failure on the part of the Administrative Agent
------
or any Lender to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement or any Note
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any Note preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
12.03. Amendments, Etc. Except as otherwise expressly provided in
---------------
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Borrower and the Majority
Lenders, or by the Borrower and the Administrative Agent acting with the consent
of the Majority Lenders, and any provision of this Agreement may be waived by
the Majority Lenders or by the Administrative Agent acting with the consent of
the Majority Lenders; provided that:
--------
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders: (i) increase, or extend
the term of any of the Commitments, or extend the time or waive any
requirement for the reduction or termination of any of the Commitments,
(ii) extend the date fixed for the payment of principal of or interest
on any Loan or Reimbursement Obligation or any fee hereunder, (iii)
reduce the amount of any such payment of principal or Reimbursement
Obligation, (iv) reduce the rate at which interest is payable thereon or
any fee is payable hereunder, (v) alter the manner in which payments or
prepayments of principal, interest or other amounts hereunder shall be
applied as between the Lenders or Types or Classes of Loans, (vi) alter
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the terms of this Section 12.03, (vii) modify the definition of the term
"Majority Lenders", or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive
any rights hereunder or to modify any provision hereof or (viii) release
any Subsidiary Guarantor from any of its guarantee obligations under
Section 6;
(b) any modification or supplement of Section 11, or of any of
the rights or duties of the Administrative Agent hereunder, shall
require the consent of the Administrative Agent; and
(c) any modification or supplement of Section 6 shall require the
consent of each Subsidiary Guarantor.
12.04. Expenses, Etc. The Borrower agrees to pay or reimburse
-------------
each of the Lenders, the Administrative Agent and the Arranger for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent and the
Arranger, including the reasonable fees and expenses of special counsel to the
Arranger, in connection with (i) the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents and the extensions of
credit hereunder and (ii) the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Loan Documents (whether or not consummated); (b) all reasonable out-of-pocket
costs and expenses of the Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 12.04; (c) all
transfer, stamp, mortgage recording, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein; and (d) all
costs, expenses and other charges in respect of title insurance procured with
respect to Liens created pursuant to any mortgages at any time securing any
obligations hereunder.
The Borrower hereby agrees to indemnify the Administrative Agent,
the Arranger and each Lender and their respective directors, officers,
employees, attorneys and agents (each, an "indemnified person") from, and hold
------------------
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by the Administrative
Agent or the Arranger to any Lender, whether or not the Administrative Agent,
the Arranger or any Lender is a party thereto) arising out of or by reason of
any investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to the extensions of
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credit hereunder or any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the extensions of credit hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified). In that connection, the Borrower will not be required
to reimburse the indemnified persons for more than one counsel in any
jurisdiction, except to the extent that a particular indemnified person may have
defenses that are distinct from, or in conflict with, the defenses of other
indemnified persons.
Without limiting the generality of the provisions of the
foregoing paragraph, the Borrower will indemnify the Administrative Agent, the
Arranger and each Lender from, and hold the Administrative Agent, the Arranger
and each Lender harmless against, any losses, liabilities, claims, damages or
expenses described in the preceding paragraph (including any Lien filed against
any Property covered by any mortgages in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Borrower or any of
its Subsidiaries (or any predecessor in interest to the Borrower or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Borrower or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or from any such site or facility, excluding any such
Release or threatened Release that shall occur during any period when the
Administrative Agent or any Lender shall be in possession of any such site or
facility following the exercise by the Administrative Agent or any Lender of any
of its rights and remedies hereunder or under any of the Security Documents, but
including any such Release or threatened Release occurring during such period
that is a continuation of conditions previously in existence, or of practices
employed by the Borrower and its Subsidiaries, at such site or facility.
12.05. Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06. Assignments and Participations.
------------------------------
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent and the Arranger.
(b) Each Lender may assign any of its Loans, its Notes and its
Commitments and its Letter of Credit Interest (but only with the consent of the
Administrative Agent, the Arranger, the Issuing Lender and the Borrower, which
consents shall not be unreasonably withheld or delayed); provided that
--------
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(i) no such consent by the Borrower, the Administrative Agent or
the Arranger shall be required in the case of any assignment to another
Lender or an affiliate of a Lender;
(ii) no such consent by the Borrower shall be required in the
case of any assignment by the Arranger in its capacity as a "Lender"
hereunder on or prior to the date 90 days after the Closing Date;
(iii) except to the extent the Borrower and the Administrative
Agent shall otherwise consent, any such partial assignment (other than
to another Lender) shall be in an amount at least equal to $5,000,000;
(iv) each such assignment by a Lender of any Loans, Notes, Letter
of Credit Interest or Commitments of any Class shall be made in such
manner so that the same portion of its Loans, Notes, Letter of Credit
Interest or Commitments of each other Class is assigned to the
respective assignee; and
(v) any consent of the Borrower otherwise required under this
paragraph (b) shall not be required if an Event of Default has occurred
and is continuing.
Upon execution and delivery by the parties to each such assignment of an
Assignment and Acceptance pursuant to which such assignee agrees to become a
"Lender" hereunder (if not already a Lender) having the Commitments, Loans and
Reimbursement obligations specified therein, and upon consent thereto by the
Borrower, the Administrative Agent, the Arranger and/or the Issuing Lender to
the extent required above and delivery of such assignment and acceptance to the
Administrative Agent, the assignee shall have, to the extent of such assignment
(unless otherwise consented to by the Borrower, the Administrative Agent, the
Arranger and the Issuing Lender, the obligations, rights and benefits of a
Lender hereunder holding the Commitments, Loans and Reimbursement Obligations
(or portions thereof) assigned to it (in addition to the Commitments, Loans and
Reimbursement obligations, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitments (or portions thereof) so assigned. Upon each such assignment the
assigning Lender shall pay the Administrative Agent an assignment fee of $2,000.
If such assignee shall not be a Lender it shall deliver to the Administrative
Agent an Administrative Questionnaire.
(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
or Letter of Credit Interest held by it, or in its Commitments, provided that
--------
such Participant shall not have any rights or obligations under this Agreement
or any Note or any other Loan Document (the Participant's rights against such
Lender in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant) except that such
Participant shall have the rights afforded to a Lender under Section 5 in
respect of the Loans, Letter of Credit Interest and Commitment(s) held by it as
if such Participant were a Lender hereunder. In no event shall a Lender that
sells a participation agree with the Participant to take or refrain from taking
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any action hereunder or under any other Loan Document except that such Lender
may agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
commitment or extend the amount or date of any scheduled reduction of such
Commitment pursuant to Section 2.04, (ii) extend the date fixed for the payment
of principal of or interest on the related Loan or Loans or Reimbursement
Obligation or any portion of any fee hereunder payable to the Participant, (iii)
reduce the amount of any such payment of principal or Reimbursement Obligation
or (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee.
(d) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 12.06, any Lender may (without
notice to the Borrower, the Administrative Agent, the Arranger or any other
Lender and without payment of any fee) assign and pledge all or any portion of
its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank, and such Loans and Notes shall be fully transferable as provided
therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the Borrower
or any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Letter of Credit Interest held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
12.07. Survival. The obligations of the Borrower under Sections
--------
5.01, 5.05, 5.06, 5.07 and 12.04, the obligations of each Subsidiary Guarantor
under Section 6.03, and the obligations of the Lenders under Section 11.05,
shall survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments, Loans or Letter of Credit Interest hereunder,
shall survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder. In addition, each representation
and warranty made, or deemed to be made by a notice of any extension of credit,
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender shall be deemed to have waived, by reason of making any
extension of credit hereunder, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
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12.08. Counterparts. This Agreement may be executed in any number
------------
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.09. Governing Law; Submission to Jurisdiction. This Agreement
-----------------------------------------
and the Notes shall be governed by, and construed in accordance with, the law of
the State of New York. Each Obligor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of the Supreme Court of the State of New York sitting in New York
County (including its Appellate Division), and of any other appellate court in
the State of New York, for the purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated hereby. Each
Obligor hereby irrevocably waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
12.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
--------------------
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
12.11. Captions. The table of contents and captions and section
--------
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.12. Confidentiality. Each Lender and the Administrative Agent
---------------
agrees (on behalf of itself and each of its affiliates, directors, officers,
employees and representatives) to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrower pursuant to this Agreement that is identified by the Borrower as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the disclosure of
--------
any such information (i) after such information shall have become public (other
than through a violation of this Section 12.12), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Lenders or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Lender or the Agent), or to
auditors or accountants, (v) to the Agent or any other Lender, (vi) in
connection with any litigation to which any one or more of the Lenders or the
Agent is a party, or in connection with the rights or remedies hereunder or
under any other Loan Document (vii) to a subsidiary or affiliate of such Lender
or (viii) subject to an agreement containing provisions substantially the same
as those of this Section pursuant to which an assignee or participant acquires
an interest in the Loans hereunder, to any assignee or participant (or
prospective assignee or participant); provided, further, that in no event shall
-------- -------
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any Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Borrower. The obligations of each Lender under this
Section 12.12 shall supersede and replace the obligations of such Lender under
the confidentiality letter in respect of this financing signed and delivered by
such Lender to the Borrower prior to the date hereof; in addition, the
obligations of any assignee or participant that has executed an agreement
containing provisions substantially the same as those of this Section pursuant
to which such assignee or participant has acquired an interest in the Loans
hereunder the confidentiality provisions of such agreement shall be superseded
by this Section 12.12 upon the date upon which such assignee becomes a Lender
hereunder pursuant to Section 12.06(b).
12.13. Limitation of Liability. Anything herein or in any of the
-----------------------
other Loan Documents to the contrary notwithstanding, the Lenders and the
Administrative Agent shall not have recourse to the assets of Holdings or any of
the Foreign Subsidiaries of the Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
PREMIER PARKS INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Address for Notices:
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxx. Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000 (first)
000-000-0000 (backup)
Telephone No.: 000-000-0000
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SUBSIDIARY GUARANTORS
---------------------
FUNTIME PARKS, INC.
TIERCO MARYLAND, INC.
TIERCO WATER PARK, INC.
FRONTIER CITY PROPERTIES, INC.
WYANDOT LAKE, INC.
DARIEN LAKE THEME PARK AND
CAMPING RESORT, INC.
FUNTIME, INC.
PREMIER WATERWORLD
CONCORD INC.
PREMIER WATERWORLD
SACRAMENTO INC.
PARK MANAGEMENT CORP.
INDIANA PARKS, INC.
AURORA CAMPGROUND, INC.
OHIO CAMPGROUNDS INC.
GREAT ESCAPE HOLDING INC.
STUART AMUSEMENT COMPANY
RIVERSIDE PARK ENTERPRISES, INC.
RIVERSIDE PARK FOOD
SERVICES, INC.
PREMIER PARKS OF COLORADO INC.
KKI, LLC
GREAT ESCAPE LLC
GREAT ESCAPE THEME PARK LLC
PREMIER INTERNATIONAL
HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
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SUBSIDIARY GUARANTORS
---------------------
ELITCH GARDENS L.P.
By Premier Parks of Colorado, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
FRONTIER CITY PARTNERS
LIMITED PARTNERSHIP
By Frontier City Properties, Inc.
its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
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LENDERS
-------
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxx X. Xxx
----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
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ADMINISTRATIVE AGENT
--------------------
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
Lending Office for all Loans:
Xxxxxx Commercial Paper Inc.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Xxxxxx Commercial Paper Inc.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier No.: 212-528-0819
Telephone No.: 000-000-0000
SCHEDULE I
(See Section 1.01 definition of
"Facility A Revolving Credit Commitment",
"Facility B Term Loan Commitment" and
"Facility C Term Loan Commitment")
Commitments
Facility A
Revolving Facility B Facility C
Credit Term Loan Term Loan
Lender Commitment Commitment Commitment
------------------ ---------- ------------ -------------
Xxxxxx Commercial
Paper Inc. $75,000,000 $100,000,000 $125,000,000
SCHEDULE II
(Section Sections 8.16(a) and 8.16(b))
Debt Agreements and Liens
SCHEDULE III
(See Section 8.08)
Environmental Matters
SCHEDULE IV
(See Sections 8.18(a), 8.18(b) and 9.08(a))
Subsidiaries and Investments
SCHEDULE V
(See Section 8.19)
Existing Parks and Real Property
SCHEDULE VI
(See Section 8.03)
Litigation
SCHEDULE VII
(See Section 8.20)
Insurance
SCHEDULE VIII
(See Sections 1.01 definition of "EBITDA" and 9.05(e)(iii))
Certain EBITDA Adjustments
