Exhibit 10.1
[EXECUTION COPY]
U.S. $275,000,000
CREDIT AGREEMENT,
dated as of April 30, 1997,
among
KSL RECREATION GROUP, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION,
as a Co-Syndication Agent
and the Documentation Agent,
THE BANK OF NOVA SCOTIA,
as a Co-Syndication Agent
and the Administrative Agent,
and
BANCAMERICA SECURITIES, INC.,
as the Syndication Agent.
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.................................................... 2
1.2. Use of Defined Terms............................................. 42
1.3. Cross-References................................................. 42
1.4. Accounting and Financial Determinations.......................... 43
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
2.1. Commitments...................................................... 43
2.1.1. Revolving Loan Commitment and Swing Line Loan
Commitment..................................................... 43
2.1.2. Letter of Credit Commitment...................................... 44
2.1.3. Term Loan Commitment............................................. 44
2.1.4. Lenders Not Permitted or Required to Make Loans.................. 45
2.1.5. Issuer Not Permitted or Required to Issue Letters
of Credit...................................................... 45
2.2. Reduction of the Commitment Amounts.............................. 46
2.2.1. Optional......................................................... 46
2.2.2. Mandatory........................................................ 46
2.3. Borrowing Procedures............................................. 47
2.3.1. Borrowing Procedure.............................................. 47
2.3.2. Swing Line Loans................................................. 48
2.4. Continuation and Conversion Elections............................ 49
2.5. Funding.......................................................... 50
2.6. Issuance Procedures.............................................. 50
2.6.1. Other Lenders' Participation..................................... 51
2.6.2. Disbursements.................................................... 51
2.6.3. Reimbursement.................................................... 52
2.6.4. Deemed Disbursements............................................. 53
2.6.5. Nature of Reimbursement Obligations.............................. 53
2.6.6. Uniform Customs and Practice..................................... 54
Section Page
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2.7. Loan Accounts and Notes.......................................... 54
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.......................... 55
3.1.1. Repayments and Prepayments....................................... 55
3.1.2. Application...................................................... 59
3.2. Interest Provisions.............................................. 61
3.2.1. Rates............................................................ 61
3.2.2. Post-Maturity Rates.............................................. 62
3.2.3. Payment Dates.................................................... 62
3.3. Fees............................................................. 63
3.3.1. Commitment Fee................................................... 63
3.3.2. Arrangement and Agency Fees...................................... 64
3.3.3. Letter of Credit Fee............................................. 64
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful....................................... 64
4.2. Deposits Unavailable............................................. 65
4.3. Change of Circumstances.......................................... 65
4.4. Replacement of Lender............................................ 66
4.5. Funding Losses................................................... 67
4.6. Taxes............................................................ 68
4.7. Change of Lending Office......................................... 71
4.8. Payments, Computations, etc...................................... 71
4.9. Sharing of Payments.............................................. 72
4.10. Setoff........................................................... 72
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extensions........................................ 73
5.1.1. Resolutions, etc................................................. 73
5.1.2. Closing Date Certificate......................................... 74
5.1.3. Pledge Agreement................................................. 74
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Section Page
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5.1.4. Guaranty......................................................... 75
5.1.5. Financial Information, etc....................................... 75
5.1.6. Solvency......................................................... 75
5.1.7. Payment of Outstanding Indebtedness, etc......................... 76
5.1.8. Issuance of the Senior Subordinated Notes........................ 76
5.1.9. No Material Adverse Change....................................... 76
5.1.10. Availability of Revolving Commitments............................ 76
5.1.11. Opinions of Counsel.............................................. 77
5.1.12. Closing Fees, Expenses, etc...................................... 77
5.2. All Credit Extensions............................................ 77
5.2.1. Compliance with Warranties, No Default, etc...................... 77
5.2.2. Credit Extension Request, etc.................................... 77
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Section Page
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc................................................ 78
6.2. Due Authorization, Non-Contravention, etc........................ 78
6.3. Government Approval, Regulation, etc............................. 79
6.4. Validity, etc.................................................... 79
6.5. Financial Information............................................ 80
6.6. No Material Adverse Change....................................... 80
6.7. Litigation, Labor Controversies, etc.; No Violation
of Law......................................................... 80
6.8. Subsidiaries..................................................... 80
6.9. Ownership of Properties.......................................... 81
6.10. Taxes............................................................ 81
6.11. ERISA Compliance................................................. 81
6.12. Compliance with Environmental Laws............................... 82
6.13. Regulations G, U and X........................................... 83
6.14. Accuracy of Information.......................................... 83
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants............................................ 84
7.1.1. Financial Information, Reports, Notices, etc..................... 84
7.1.2. Preservation of Corporate Existence, etc......................... 87
7.1.3. Maintenance of Properties........................................ 88
7.1.4. Payment of Taxes................................................. 88
7.1.5. Compliance with Statutes, etc.................................... 88
7.1.6. Insurance........................................................ 89
7.1.7. Inspection Of Property and Books and Records..................... 89
7.1.8. Guaranty by each of The Fairways Group, L.P.
and its Subsidiaries........................................... 89
7.1.9. Future Subsidiaries.............................................. 89
7.1.10. Use of Proceeds.................................................. 90
7.1.11. Transactions with Affiliates..................................... 90
7.1.12. Business Activities.............................................. 91
7.1.13. End of Fiscal Year............................................... 91
7.2. Negative Covenants............................................... 91
7.2.1. Modification of Certain Agreements............................... 91
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Section Page
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7.2.2. Indebtedness..................................................... 91
7.2.3. Liens............................................................ 94
7.2.4. Financial Condition and Operations............................... 97
7.2.5. Investments...................................................... 98
7.2.6. Restricted Payments, etc.........................................100
7.2.7. Consolidations and Mergers; Sales of Assets......................102
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.....................................103
8.1.1. Non-Payment of Obligations.......................................103
8.1.2. Breach of Warranty...............................................103
8.1.3. Non-Performance of Certain Covenants
and Obligations................................................104
8.1.4. Non-Performance of Other Covenants and Obligations...............104
8.1.5. Default on Other Indebtedness....................................104
8.1.6. Judgments........................................................104
8.1.7. ERISA............................................................104
8.1.8. Control of the Borrower..........................................104
8.1.9. Bankruptcy, Insolvency, etc......................................105
8.1.10. Impairment of Security, etc......................................105
8.2. Action if Bankruptcy.............................................105
8.3. Action if Other Event of Default.................................106
ARTICLE IX
THE AGENTS
9.1. Actions..........................................................106
9.2. Funding Reliance, etc............................................107
9.3. Exculpation......................................................108
9.4. Successor........................................................108
9.5. Loans by Agents..................................................109
9.6. Credit Decisions.................................................109
9.7. Copies, etc......................................................110
ARTICLE X
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Section Page
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MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.........................................110
10.2. Notices..........................................................112
10.3. Payment of Costs and Expenses....................................112
10.4. Indemnification..................................................113
10.5. Survival.........................................................114
10.6. Severability.....................................................115
10.7. Headings.........................................................115
10.8. Execution in Counterparts, Effectiveness, etc....................115
10.9. Governing Law; Entire Agreement..................................115
10.10. Successors and Assigns...........................................116
10.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes..............................116
10.11.1. Assignments......................................................116
10.11.2. Participations...................................................118
10.12. Other Transactions...............................................119
10.13. Confidentiality..................................................120
10.14. Forum Selection and Consent to Jurisdiction......................120
10.15. Waiver of Jury Trial.............................................121
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ANNEX I - Lender Information
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Specified Real Properties
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT A-4 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Pledge Agreement
EXHIBIT G - Form of Guaranty
EXHIBIT H - Form of Lender Assignment Agreement
EXHIBIT I - Form of Solvency Certificate
EXHIBIT J-1 - Form of Opinion of Simpson, Thacher &
Xxxxxxxx, Special Counsel to the Borrower
and each of the other Obligors
EXHIBIT J-2 - Form of Opinion of Xxxx X. Xxxx, Esq.,
General Counsel to the Borrower and each of
the other Obligors
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 30, 1997, is among KSL RECREATION
GROUP, INC. (the "Borrower"), a Delaware corporation and the wholly-owned
Subsidiary (such term, and other capitalized terms used herein, to have the
meanings provided in Section 1.1) of KSL Recreation Corporation, a Delaware
corporation ("KSL"), the various financial institutions as are or may become
parties hereto (collectively, the "Lenders", and, individually, a "Lender"),
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION ("DLJ"), as a co-syndication
agent (in such capacity, a "Co-Syndication Agent"), and as the documentation
agent (in such capacity, the "Documentation Agent"), THE BANK OF NOVA SCOTIA
("Scotiabank"), as a co- syndication agent (in such capacity, a "Co-Syndication
Agent", and, together with DLJ, in such capacity, collectively, the "Co-
Syndication Agents") and as the administrative agent (in such capacity, the
"Administrative Agent"), and BANCAMERICA SECURITIES, INC. ("BancAmerica"), as
the syndication agent (in such capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Borrower desires to obtain from the Lenders
(a) a Term A Loan Commitment and a Term B Loan Commitment pursuant
to which Borrowings of Term A Loans and Term B Loans will be made to the
Borrower in a single Borrowing to occur on the Closing Date in a maximum
aggregate principal amount not to exceed $50,000,000 in respect of Term A
Loans and $50,000,000 in respect of Term B Loans;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans and Swing Line Loans, in a maximum aggregate
principal amount (together with all Letter of Credit Outstandings) not to
exceed $175,000,000 will be made to the Borrower from
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time to time on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer will
issue Letters of Credit for the account of the Borrower from time to time
on and subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date in a maximum aggregate Stated Amount at any
one time outstanding not to exceed $20,000,000 (provided, that the
aggregate outstanding principal amount of Revolving
Loans, Swing Line Loans and Letter of Credit Outstandings at any time
shall not exceed the then existing Revolving Loan Commitment Amount); and
(d) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not to
exceed $10,000,000 will be made on and subsequent to the Closing Date but
prior to the Revolving Loan Commitment Termination Date (provided, that
the aggregate outstanding principal amount of such Swing Line Loans,
Revolving Loans and Letter of Credit Outstandings at any time shall not
exceed the then existing Revolving Loan Commitment Amount);
with all the proceeds of the Credit Extensions to be used for the purposes
specified in Section 7.1.10; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower and issue (or participate in)
Letters of Credit for the account of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its
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preamble and recitals, shall, except where the context otherwise requires, have
the following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the Capital
Stock of any Person, or otherwise causing any Person to become a Subsidiary, (c)
a merger or consolidation or any other combination with another Person (other
than with a Person that is a Restricted Subsidiary), provided that the Borrower
or one of its Restricted Subsidiaries is the surviving entity or (d) an
Unrestricted Subsidiary becoming a Restricted Subsidiary.
"Adjusted EBITDA" means, with respect to any particular Person, for such
Person and its Restricted Subsidiaries, for any applicable period, the sum
(without duplication) of
(a) EBITDA of such Person and each of its Restricted Subsidiaries,
plus
(b) the amount of refundable membership deposits paid in cash, plus
principal payments in cash received on notes in respect thereof, minus the
amount of any refunds paid in cash in respect of such deposits or amounts.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). With respect to any Lender or the Issuer, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, power to vote 51% or more of
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the securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners of such "controlled" Person.
With respect to all other Persons, a Person shall be deemed to be "controlled
by" another Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners of such "controlled" Person; or
(b) to direct or cause the direction of the management and policies
of such "controlled" Person whether through ownership of voting
securities, membership or partnership interests, by contract or otherwise.
"Agent" means, as the context may require, the Administrative Agent, the
Syndication Agent, each of the Co-Syndication Agents and/or the Documentation
Agent.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate.
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"Annual Payment Date" means each annual anniversary of the Closing Date
or, if such day is not a Business Day, the next succeeding Business Day.
"Applicable Commitment Fee" means, with respect to the fee payable to the
Lenders pursuant to Section 3.3.1, (a) for the period following the Closing Date
through (and including) October 31, 1997, 1/2 of 1% and (b) at all times
thereafter during the applicable periods set forth below, the applicable
percentage set forth below under the column entitled "Applicable Commitment
Fee":
Applicable
Leverage Ratio Commitment Fee
Greater than 5.5:1 0.425%
Less than or equal to 5.5:1
and greater than 5.0:1 0.375%
Less than or equal to 5.0:1
and greater than 4.5:1 0.375%
Less than or equal to 4.5:1
and greater than 4.0:1 0.350%
Less than or equal to 4.0:1
and greater than 3.5:1 0.300%
Less than or equal to 3.5:1
and greater than 3.0:1 0.250%
Less than or equal to 3.0:1 0.200%.
The Leverage Ratio used to compute the Applicable Commitment Fee shall be
the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent pursuant to clause (c) of
Section 7.1.1; changes in the Applicable Commitment Fee resulting from a change
in the Leverage Ratio shall become effective (as of the first day following the
Fiscal Quarter in respect of which such Compliance Certificate was required to
be delivered) upon delivery by the Borrower to the Administrative Agent of a new
Compliance Certificate pursuant to clause (c) of Section 7.1.1. In the
event such Compliance Certificate indicates a Leverage Ratio that would result
in an Applicable Commitment Fee which is greater or
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lesser than the Applicable Commitment Fee then in effect, then (A) such greater
or lesser Applicable Commitment Fee shall be deemed to be in effect for all
purposes of this Agreement from the first day following the Fiscal Quarter in
respect of which such Compliance Certificate was required to be delivered to the
Administrative Agent pursuant to clause (c) of Section 7.1.1 and (B) if the
Borrower shall have made any payment in respect of fees during the period from
the first day following the Fiscal Quarter in respect of which such Compliance
Certificate was required to be delivered to the actual date of delivery of such
Compliance Certificate, then, on the next Quarterly Payment Date, the Borrower
shall pay in the form of a supplemental payment of fees, an amount which equals
the difference between the amount of fees that would otherwise have been paid
based on such new Leverage Ratio and the amount of such fees so paid, or, as the
case may be, an amount shall be deducted from the fees then otherwise payable in
an amount which equals the difference between the amount of fees so paid and the
amount of fees that would otherwise have been paid based on such new Leverage
Ratio.
"Applicable Margin" means
(a) at all times, with respect to the unpaid principal amount of
each Term A Loan maintained as a Base Rate Loan, 1.75%;
(b) at all times, with respect to the unpaid principal amount of
each Term A Loan maintained as a LIBO Rate Loan, 2.75%;
(c) at all times, with respect to the unpaid principal amount of
each Term B Loan maintained as a Base Rate Loan, 2.00%;
(d) at all times, with respect to the unpaid principal amount of
each Term B Loan maintained as a LIBO Rate Loan, 3.00%; and
(e) (i) with respect to the unpaid principal amount of each
Revolving Loan maintained as a Base Rate Loan, (x) for the period
following the Closing Date through (and including) October 31, 1997, 1.25%
and (y) at all times
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thereafter during the applicable periods set forth below, the applicable
percentage set forth below under the column entitled "Applicable Margin
for Base Rate Revolving Loans", and (ii) with respect to the unpaid
principal amount of each Revolving Loan maintained as a LIBO Rate Loan,
(x) for the period following the Closing Date through (and including)
October 31, 1997, 2.25% and (y) at all times thereafter during the
applicable periods set forth below, the applicable percentage set forth
below under the column entitled "Applicable Margin for LIBO Rate Revolving
Loans":
Applicable Margin Applicable Margin
for Base Rate for LIBO Rate
Leverage Ratio Revolving Loans Revolving Loans
-------------- ----------------- -----------------
Greater than 5.5:1 1.250% 2.250%
Less than or equal
to 5.5:1 and
greater than 5.0:1 1.000% 2.000%
Less than or equal
to 5.0:1 and
greater than 4.5:1 0.625% 1.625%
Less than or equal
to 4.5:1 and
greater than 4.0:1 0.375% 1.375%
Less than or equal
to 4.0:1 and
greater than 3.5:1 0.125% 1.125%
Less than or equal
to 3.5:1 and
greater than 3.0:1 0.000% 0.875%
Less than or equal 0.000% 0.625%.
to 3.0:1
The Leverage Ratio used to compute the "Applicable Margin for Base Rate
Revolving Loans" and the "Applicable Margin for LIBO Rate Revolving Loans" shall
be the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent pursuant to clause (c) of
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Section 7.1.1; changes in the "Applicable Margin for Base Rate Revolving Loans"
and the "Applicable Margin for LIBO Rate Revolving Loans" resulting from a
change in the Leverage Ratio shall become effective (as of the first day
following the Fiscal Quarter in respect of which such Compliance Certificate was
required to be delivered) upon delivery by the Borrower to the Administrative
Agent of a new Compliance Certificate pursuant to clause (c) of Section 7.1.1.
In the event such Compliance Certificate indicates a Leverage Ratio that would
result in an Applicable Margin which is greater or lesser than the Applicable
Margin then in effect, then (A) such greater or lesser Applicable Margin shall
be deemed to be in effect for all purposes of this Agreement from the first day
following the Fiscal Quarter in respect of which such Compliance Certificate was
required to be delivered to the Administrative Agent pursuant to clause (c) of
Section 7.1.1 and (B) if the Borrower shall have made any payment in respect of
interest during the period from the first day following the Fiscal Quarter in
respect of which such Compliance Certificate was required to be delivered to the
actual date of delivery of such Compliance Certificate, then, on the next
Quarterly Payment Date, the Borrower shall pay in the form of a supplemental
payment of interest, an amount which equals the difference between the amount of
interest that would otherwise have been paid based on such new Leverage Ratio
and the amount of such interest so paid, or, as the case may be, an amount shall
be credited to the Borrower in an amount which equals the difference between the
amount of interest so paid and the amount of interest that would otherwise have
been paid based on such new Leverage Ratio.
"Authorized Officer" means, relative to the Borrower and any other
Obligor, those of its officers whose signatures and incumbency shall have been
certified to the Agents and the Lenders pursuant to Section 5.1.1 and such other
officers of the Borrower as the Borrower designates in writing as such to the
Administrative Agent.
"Available Amount" means, on any date (the "Reference Date"), an amount
equal to (a) the sum of (i) the aggregate amount of net cash proceeds received
by the Borrower (x) in respect of equity contributions made to the Borrower by
Persons other than Subsidiaries of the Borrower after the Closing Date
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and on or prior to the Reference Date or (y) from issuances of equity of the
Borrower after the Closing Date and on or prior to the Reference Date, plus (ii)
the cumulative amount of Excess Cash Flow not required to be applied to
prepayments pursuant to clause (f) of Section 3.1.1 on or prior to the Reference
Date, plus (iii) the aggregate amount of prepayments refused by Lenders pursuant
to clause (b)(i)(B) of Section 3.1.2 and retained by the Borrower pursuant to
clauses (b)(i)(C) and (b)(i)(D) of Section 3.1.2, on or prior to the Reference
Date, minus (b) the sum of (i) the aggregate amount of any Investments (as such
aggregate amount is determined in accordance with the definition of
"Investment") made by the Borrower or any Restricted Subsidiary pursuant to
clause (j)(ii) of Section 7.2.5 on or prior to the Reference Date and (ii) the
aggregate amount paid by the Borrower in connection with any prepayment,
repurchase or redemption of the Senior Subordinated Notes pursuant to clause (g)
of Section 7.2.6 on or prior to the Reference Date.
"BancAmerica" is defined in the preamble.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York, New York as its base rate
for Dollars loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Administrative
Agent in connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
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"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day which is a Business Day described in clause (a)
above and which is also a day on which dealings in Dollars are carried on
in the London interbank eurodollar market.
"Capital Expenditures" means, for any period, the sum of (a) the aggregate
amount of all expenditures of the Borrower and its Restricted Subsidiaries for
fixed or capital assets made during such period which, in accordance with GAAP,
would be classified as capital expenditures, and (b) without duplication, the
aggregate amount of all cash payments made during such period in respect of all
Capitalized Lease Liabilities allocable to the principal component thereof;
provided that the term "Capital Expenditures" shall not include (i) expenditures
made in connection with the replacement, substitution or restoration of assets
(A) to the extent financed from insurance proceeds paid on account of the loss
of or damage to the assets being replaced or restored or (B) with awards of
compensation arising from the taking by eminent domain or condemnation of the
assets being replaced, (ii) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment to the extent that the
gross amount of such purchase price is reduced by the credit granted by the
seller of such equipment for the equipment being traded in at such time, (iii)
Capitalized Lease Liabilities paid in respect of equipment that is leased in
substitution for, or as replacement in connection with the trade- in of,
existing similar equipment, (iv) the purchase of plant, property or equipment
made within one year of the sale of any asset in replacement of such asset to
the extent purchased with the proceeds of such sale and Capitalized Lease
Liabilities paid in respect of such replaced asset and (v) the portion of the
purchase price in connection with any Acquisition that would otherwise be
included as additions to property, plant or equipment and Capitalized Lease
Liabilities assumed or incurred in connection with any Acquisition.
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"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Restricted Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, are classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP, and the stated maturity thereof shall be determined in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of capital of such Person, including if such Person is a
partnership, partnership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnership,
whether now outstanding or issued after the Effective Date.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or guaranteed by) the United States
government (or any agency or instrumentality thereof) maturing not more
than two years after the date of acquisition thereof;
(b) any direct obligation of (or guaranteed by) any state of the
United States (or any political subdivision, agency or instrumentality
thereof) maturing not more than two years after the date of acquisition
thereof and, at the time of such acquisition, rated at least investment
grade by either S&P or Xxxxx'x (or, if at any time neither S&P or Xxxxx'x
shall be rating such obligations, then from another nationally recognized
rating agency);
(c) commercial paper, maturing not more than twelve months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A-2 by S&P or P-2 by Xxxxx'x
(or, if at any
-11-
time neither S&P or Xxxxx'x shall be rating such obligations, then
from another nationally recognized rating agency), or
(ii) any Lender (or its holding company);
(d) any certificate of deposit or bankers acceptance, maturing not
more than two years after the date of acquisition thereof, which is issued
by either
(i) any bank which has a combined capital and surplus not less
than $250,000,000 (or in the case of foreign banks, the Dollar
equivalent thereof), or
(ii) any Lender;
(e) any repurchase agreement entered into with any Lender or any
commercial banking institution of the stature referred to in clause (d)(i)
above or securities dealers of recognized national standing which
(i) is for any obligation of the type described in clause (a),
(b) or (d) above, and
(ii) has a term of not more than 30 days for underlying
obligations of the type described in clause (a), (b) or (d) above;
(f) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types of securities described in clauses (a) through (e) above; and
(g) short-term, high quality liquid investments made by a Foreign
Subsidiary in the ordinary course of managing its cash.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws".
"Change of Control" means, and shall be deemed to have occurred if: (a)
(i) KKR, its successors and its Affiliates and
-12-
management of the Borrower shall cease to own in the aggregate, directly or
indirectly, beneficially and of record, 35% of the outstanding Voting Stock of
the Borrower (other than as the result of (A) one or more public offerings of
common stock of the Borrower or (B) a widely distributed private placement of
common stock of the Borrower that does not provide any special director
designation or special election rights or other special corporate governance
rights to the holders of such shares, in each case whether by the Borrower or
another Person) and/or (ii) any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act) shall at any time have acquired direct or
indirect beneficial ownership of a percentage of the outstanding Voting Stock of
the Borrower that exceeds in the aggregate the percentage of such Voting Stock
then beneficially owned, directly or indirectly, by KKR, its successors and its
Affiliates and management of the Borrower, unless, in the case of either
clause(a)(i) or (a)(ii) above, KKR, its successors and its Affiliates and
management of the Borrower have, at such time, the right or the ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Borrower; and/or (b) at any time
Continuing Directors shall not constitute a majority of the Board of Directors
of the Borrower.
"Closing Date" means the date of the making of the initial Credit
Extensions hereunder, subject to the prior or concurrent satisfaction (or waiver
by each of the Lenders and each of the Agents) of each of the conditions
precedent set forth in Article V.
"Closing Date Certificate" means the closing date certificate executed and
delivered by the Borrower pursuant to Section 5.1.2, substantially in the form
of Exhibit D hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Lender's Term A Loan
Commitment, Term B Loan Commitment, Revolving Loan Commitment or Letter of
Credit Commitment, or the Swing Line Lender's Swing Line Loan Commitment.
-13-
"Commitment Amount" means, as the context may require, the Term A Loan
Commitment Amount, the Term B Loan Commitment Amount, the Revolving Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line Loan
Commitment Amount.
"Commitment Termination Date" means, as the context may require, the Term
A Loan Commitment Termination Date, the Term B Loan Commitment Termination Date
or the Revolving Loan Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses (a)
through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of all or any portion of the Loans to be
due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative Agent, acting
at the direction, or with the consent, of the Required Lenders, to
the Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and executed
by the chief executive, financial or accounting Authorized Officer of the
Borrower, substantially in the form of Exhibit E hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time,
together with such changes thereto as the Agents may from time to time
reasonably request for the purpose of monitoring the Borrower's compliance with
the financial covenants contained herein.
"Confidential Memorandum" means the Confidential Information Memorandum
dated April 1997, describing the KSL Recreation Group, Inc. $275,000,000 senior
secured credit facilities.
"Consolidated Gross Revenues" means, for any period, the consolidated
gross revenues of the Borrower and its Restricted Subsidiaries for such period,
determined in accordance with GAAP.
-14-
"Consolidated Net Income" means, with respect to any particular Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, however, that (i) any net after-tax extraordinary gains or
losses (less all fees and expenses relating thereto) shall be excluded, (ii) any
net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions other than in the ordinary course of business
shall be excluded, or (iii) the Net Income for such period of the referent
Person attributable to any Person that is not a Restricted Subsidiary of the
Borrower, or that is accounted for by the equity method of accounting, shall be
included only to the extent of dividends or distributions or other net payments
paid in cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary (except for directors' qualifying shares) in respect of
such period.
"Consolidated Working Capital" means, with respect to the Borrower, at any
date, the excess of (a) the sum of all amounts (other than cash and cash
equivalents) that would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated balance
sheet of the Borrower and its Restricted Subsidiaries at such date over (b) the
sum of all amounts that would, in conformity with GAAP, be set forth opposite
the caption "total current liabilities" (or any like caption) on a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries on such date, but
excluding the current portion of any Total Funded Debt.
"Contingent Obligation" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, with or
without recourse, to provide funds for payment to, to purchase from, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the Indebtedness of any other Person (other than by endorsements
of instruments in the course of collection), or guarantees the payment of
scheduled dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Obligation shall
(subject to any limitation set forth therein) be deemed to
-15-
be the outstanding principal amount (or maximum principal amount, if larger) of
the debt, obligation or other liability guaranteed thereby or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as determined
by such Person in good faith. Notwithstanding the foregoing, the term
"Contingent Obligation" shall not include (a) endorsements of instruments for
deposit or collection in the ordinary course of business, (b) guarantees made by
a Person of the obligations of a Restricted Subsidiary of such Person that do
not constitute Indebtedness of such Restricted Subsidiary and are incurred in
the ordinary course of business of such Restricted Subsidiary and (c)
obligations arising from agreements providing for indemnification or adjustment
of purchase price (or from guarantees supporting any obligations pursuant to any
such agreements) incurred in connection with the disposition of any business or
assets or Restricted Subsidiary.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Continuing Director" means, at any date, an individual (a) who is a
member of the Board of Directors of the Borrower, as the case may be, on the
Effective Date, (b) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months (or, for the period comprising
the first 12 months after the Effective Date, has been a member of such Board of
Directors at least since the Effective Date), or (c) who has been nominated to
be a member of such Board of Directors, directly or indirectly, by KKR or
Persons nominated by KKR or has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"Corporate Sale Transaction" means a one-time transfer (pursuant to clause
(k) of Section 7.2.5, clause (f) of Section 7.2.6 or clause (c) of Section
7.2.7) of all or a portion of the Capital Stock or assets of one of the
Borrower's Restricted Subsidiaries, provided that, in any event, such
transaction shall only be permitted to the extent that (i) such transfer is
designated as the "Corporate Sale Transaction" by notice in
-16-
writing from the Borrower to the Agents, (ii) only one transaction (or series of
directly related transactions), involving a single Restricted Subsidiary (and
any of its Subsidiaries), may be designated as the "Corporate Sale Transaction",
(iii) both immediately before and after giving effect to such "Corporate Sale
Transaction", no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (iv) immediately after giving pro forma
effect to such "Corporate Sale Transaction", as if such transaction had occurred
at the beginning of the applicable Test Period, (A) the Interest Coverage Ratio
as of the end of the applicable Test Period would not be any lower than the
Interest Coverage Ratio set forth in the Compliance Certificate most recently
delivered to the Administrative Agent pursuant to Section 7.1.1 for the Test
Period immediately prior to giving effect to such transaction and (B) the
Leverage Ratio as of the end of the applicable Test Period would not be any
greater than the Leverage Ratio set forth in the Compliance Certificate most
recently delivered to the Administrative Agent pursuant to Section 7.1.1 for the
Test Period immediately prior to giving effect to such transaction and (v) the
Borrower shall have delivered to the Agents prior to the consummation of such
transaction a certificate of the Borrower executed by its chief financial
Authorized Officer stating that the statements made in the foregoing clauses
(iii) and (iv) are true and correct and demonstrating (in reasonable detail,
including with respect to appropriate calculations and computations) compliance
with the requirements set forth in subclauses (A) and (B) of the foregoing
clause (iv).
"Co-Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as a successor Co-Syndication
Agent pursuant to Section 9.4.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by the Issuer.
-17-
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Agents and the Required Lenders.
"Disposition" means the sale, conveyance, issuance or other disposition of
any property, business or assets by the Borrower or any Restricted Subsidiary
(including receivables of or owned by, and Capital Stock owned by, the Borrower
or such Restricted Subsidiary, and in all cases whether now owned or hereafter
acquired), other than (a) the issuance of Capital Stock of the Borrower, (b)
sales, conveyances or other dispositions in the ordinary course of business
(including sales, conveyances or other dispositions of inventory in the ordinary
course and including sales, conveyances or other dispositions in the ordinary
course of business of condominium units and other similar interests in real
property in connection with the Borrower's property development and property
management activities in an aggregate amount not to exceed $10,000,000 during
the term of this Agreement) and (c) the Corporate Sale Transaction.
"DLJ" is defined in the preamble.
"Documentation Agent" is defined in the preamble and includes each other
Person as shall have subsequently been
-18-
appointed as the successor Documentation Agent pursuant to Section 9.4.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "Domestic Office" below its name in Annex I hereto
or as set forth in a Lender Assignment Agreement, or such other office of a
Lender (or any successor or assign of such Lender) within the United States as
may be designated from time to time by notice from such Lender, as the case may
be, to each other Person party hereto.
"Domestic Subsidiary" means any Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" means, with respect to any particular Person, for such Person and
its Restricted Subsidiaries, for any applicable period, the sum (without
duplication) of
(a) Consolidated Net Income of such Person and its Restricted
Subsidiaries,
plus
(b) the amount deducted by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person and
its Restricted Subsidiaries, representing non-cash charges, including in
respect of amortization, depreciation, restructuring charges or reserves,
other reserves and non-recurring charges,
plus
(c) the amount deducted, in determining Consolidated Net Income of
such Person and its Restricted Subsidiaries, of all federal, state and
local income taxes (whether paid in cash or deferred) of such Person and
its Restricted Subsidiaries,
-19-
plus
(d) the amount deducted, in determining Consolidated Net Income of
such Person and its Restricted Subsidiaries, of Interest Expense and
non-cash interest expense of such Person and its Restricted Subsidiaries,
minus
(e) the amount included by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person and
its Restricted Subsidiaries, representing non-cash gains,
minus
(f) the amount included by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person and
its Restricted Subsidiaries, representing non-recurring gains.
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 10.8.
"Eligible Assignee" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any fund that is
regularly engaged in making, purchasing or investing in loans or any Person that
would satisfy the requirements of an "accredited investor" (as defined in SEC
Regulation D, but excluding a natural person).
"Environmental Claims" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by the Borrower or any of its Subsidiaries (a) in the ordinary course of such
Person's business or (b) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in any
way to any Environmental Law or any permit issued, or any approval given, under
any such Environmental Law (hereafter, "Claims"), including, without limitation,
(i) any and all Claims by
-20-
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Laws" means any and all present and future laws, statutes,
ordinances, rules, regulations, requirements, restrictions, permits, orders, and
determinations of any governmental authority that have the force and effect of
law, pertaining to pollution (including Hazardous Materials), natural resources
or the environment, whether federal, state, or local, including environmental
response laws such as the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, and as the same may be further amended (hereinafter
collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means any of the following if such event or occurrence
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (a) the failure to make a required contribution to a
Pension Plan if such failure is sufficient to give rise to a Lien under Section
302(f) of ERISA; (b) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a
-21-
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA other than PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any), of
(a) the sum for such Fiscal Year, without duplication, of:
(i) Consolidated Net Income of the Borrower and its Restricted
Subsidiaries;
plus
(ii) the amount deducted by the Borrower and its Restricted
Subsidiaries, in determining Consolidated Net Income of the Borrower
and its Restricted Subsidiaries, representing non-cash charges,
including in respect of amortization, depreciation, restructuring
charges or reserves, other reserves and non-recurring charges;
plus
(iii) decreases in Consolidated Working Capital;
over
(b) the sum for such Fiscal Year, without duplication, of
-22-
(i) the amount included by the Borrower and its Restricted
Subsidiaries of all non-cash credits, in determining Consolidated
Net Income;
plus
(ii) the aggregate amount of all principal payments of
Indebtedness of the Borrower or its Restricted Subsidiaries
(including any Term Loans and the principal component of payments in
respect of Capitalized Lease Liabilities but excluding Term Loans
prepaid pursuant to clause (f) of Section 3.1.1) made during such
Fiscal Year (other than in respect of any revolving credit facility
to the extent there is not an equivalent permanent reduction in
commitments thereunder);
plus
(iii) to the extent accompanied by a permanent reduction in
the Revolving Loan Commitment Amount, voluntary prepayments of the
principal amount of Revolving Loans and Swing Line Loans;
plus
(iv) increases in Consolidated Working Capital;
plus
(v) Capital Expenditures permitted hereunder and actually made
by the Borrower and its Restricted Subsidiaries in such Fiscal Year
(excluding the principal amount of Indebtedness incurred in
connection with such Capital Expenditures, whether incurred in such
Fiscal Year or in a subsequent Fiscal Year);
plus
(vi) the amount of cash payments by the Borrower and its
Restricted Subsidiaries during such Fiscal Year
-23-
in respect of long-term liabilities of the Borrower and its
Restricted Subsidiaries other than Indebtedness;
plus
(vii) the amount of Investments made during such Fiscal Year
in cash pursuant to clause (e), (h), (i) or (j) of Section 7.2.5 to
the extent that such Investments were financed with internally
generated cash flow of the Borrower and its Restricted Subsidiaries;
plus
(viii) the aggregate amount of expenditures actually made by
the Borrower and its Restricted Subsidiaries in cash during such
Fiscal Year (including expenditures for the payment of financing
fees) to the extent that such expenditures are not expensed during
such Fiscal Year;
plus
(ix) the aggregate amount of dividends paid to KSL in
accordance with clauses (d), (e) and (h) of Section 7.2.6;
provided, however, that Excess Cash Flow for any Fiscal Year shall not be deemed
to be less than zero.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Federal Funds Rate" means, for any day, a fluctuating interest rate per
annum equal to
(a) the rate set forth in the weekly statistical release designated
as H.15(519), or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, "H.15(519)") on
the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or
-24-
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain confidential letter, dated April 4, 1997,
among KSL and the Agents.
"Fiscal Quarter" means any quarter of a Fiscal Year ending on the last day
of January, April, July or October.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on October 31; references to a Fiscal Year with a number corresponding to
any calendar year (e.g., the "1997 Fiscal Year") refer to the Fiscal Year ending
on October 31 of such calendar year.
"Fiscal Year End" is defined in Section 7.1.13.
"Fixed Charge Coverage Ratio" means, as of the close of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately prior Fiscal Quarters with respect to the Borrower
and its Restricted Subsidiaries on a consolidated basis of:
(a) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
(for all such Fiscal Quarters);
to
(b) the sum (for all such Fiscal Quarters) of
(i) Interest Expense of the Borrower and its Restricted
Subsidiaries;
plus
(ii) scheduled principal repayments of the Term Loans pursuant
to the provisions of clauses (c) and (d) of Section 3.1.1 after
giving effect to any reductions in such scheduled principal
repayments attributable to
-25-
any optional or mandatory prepayments of the Term Loans;
plus
(iii) all federal, state and foreign income taxes actually
paid in cash by the Borrower and its Restricted Subsidiaries
(including payments made to any Affiliate of the Borrower other than
a Restricted Subsidiary in respect of any tax sharing agreement,
including the Tax Sharing Agreement);
plus
(iv) Ordinary Capital Expenditures;
plus
(v) dividends made by the Borrower in cash pursuant to Section
7.2.6;
provided, however, that in computing the Fixed Charge Coverage Ratio for the
fourth Fiscal Quarter of the 1997 Fiscal Year, the amount set forth in clause
(b) above shall equal the sum of the amounts set forth in clause (b) for such
Fiscal Quarter and the two immediately preceding Fiscal Quarters, multiplied by
4/3.
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States, (b)
which conducts the major portion of its business outside of the United States
and (c) all or substantially all of the property and assets of which are located
outside of the United States.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity
-26-
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any corporation or other
entity owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Guaranty" means the guaranty executed and delivered by each Restricted
Subsidiary required to do so hereunder that is a direct or indirect Domestic
Subsidiary of the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit G hereto, as amended, supplemented, amended
and restated or otherwise modified.
"Hazardous Materials" means any substance that is defined or listed as a
hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (a) any
substance that is a "hazardous substance" under CERCLA and (b) petroleum wastes
or products.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under currency exchange agreements, interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or certification
-27-
(a) which questions the status of the Borrower and its Restricted
Subsidiaries, taken as a whole, as a "going concern";
(b) which relates to the limited scope of examination of any
material portion of the records of the Borrower and its Restricted
Subsidiaries relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrower to be in default of any of its obligations under Section
7.2.4.
"including" and "include" means including without limiting the generality
of any description preceding such term.
"Increased Commitment Amount" is defined in Section 10.1.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) net monetary liabilities of such Person under all Hedging
Obligations (calculated, at any time, as the aggregate amount (giving
effect to any netting agreements) that the Borrower or a Restricted
Subsidiary would be required to pay if the agreements giving rise to such
Hedging Obligations were terminated at such time);
(e) all obligations of such Person to pay the deferred purchase
price of property or services that, in accordance with GAAP, would be
included on the liability side of the
-28-
balance sheet of such Person as of the date at which Indebtedness is to be
determined;
(f) all indebtedness referred to in clauses (a), (b), (c) and (e)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; and
(g) all Contingent Obligations of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless the express terms of the relevant
partnership or joint venture agreement provide that liabilities incurred in
connection therewith are completely without recourse to such Person or is of
limited recourse to such Person, in which case the amount of Indebtedness of
such Person in respect thereof shall be limited to the extent of such recourse
against such Person.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, rehabilitation, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors or other, similar arrangement in respect of
its creditors generally or any substantial portion of its creditors, undertaken
under U.S. Federal, state or foreign law, including the Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. ss. 101, et seq.).
"Interest Coverage Ratio" means, at the close of any Fiscal Quarter, the
ratio computed for the period consisting of such
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Xxxxxx Xxxxxxx and each of the three immediately prior Fiscal Quarters of:
(a) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
(for all such Fiscal Quarters)
to
(b) the sum (for all such Fiscal Quarters) of Interest Expense of
the Borrower and its Restricted Subsidiaries;
provided, however, that in computing the Interest Coverage Ratio for
(c) the second Fiscal Quarter of the 1997 Fiscal Year, the amount
set forth in clause (b) above shall equal the Interest Expense of the
Borrower and its Restricted Subsidiaries for such Fiscal Quarter,
multiplied by four;
(d) the third Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in clause (b) above shall equal the aggregate Interest Expense of
the Borrower and its Restricted Subsidiaries for such Fiscal Quarter and
the immediately preceding Fiscal Quarter, multiplied by two; and
(e) the fourth Fiscal Quarter of the 1997 Fiscal Year, the amount
set forth in clause (b) above shall equal the aggregate Interest Expense
of the Borrower and its Restricted Subsidiaries for such Fiscal Quarter
and the two immediately preceding Fiscal Quarters, multiplied by 4/3.
"Interest Expense" means, for any Fiscal Quarter, the aggregate cash
interest expense (net of cash interest income) of the Borrower and its
Restricted Subsidiaries for such Fiscal Quarter, as determined in accordance
with GAAP, including the portion of any payments made in respect of Capitalized
Lease Liabilities allocable to interest expense, but excluding deferred
financing costs and other non-cash interest expense.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate
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Loan pursuant to Section 2.3 or 2.4 and shall end on (but exclude) the day which
numerically corresponds to such date one, two, three or six (or, if available to
all the Lenders making such Loans as determined by such Lenders in good faith
based on prevailing market conditions, nine or twelve) months thereafter (or, if
such month has no numerically corresponding day, on the last Business Day of
such month), as the Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than fifteen different dates (provided, that, in any event, the
Borrower shall not be permitted to select Interest Periods to be in effect
at any one time which have expiration dates occurring on more than ten
different dates with respect to Revolving Loans, ten different dates with
respect to Term A Loans and ten different dates with respect to Term B
Loans);
(b) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall
end on the Business Day next preceding such numerically corresponding
day); and
(c) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person;
(b) any Contingent Obligation of such Person incurred in connection
with loans or advances described in clause (a); and
(c) any ownership or similar interest held by such Person in any
other Person.
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The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity, or distributions or dividends
paid, thereon and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair value of such property at the time of such Investment,
as determined in good faith by the Borrower.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-2 hereto.
"Issuer" means Scotiabank in its capacity as issuer of the Letters of
Credit, together with each other Person as shall have subsequently been
appointed as the successor Issuer in accordance with Section 9.4. At the request
of Scotiabank or such successor Issuer, another Lender with a Revolving Loan
Commitment or an Affiliate of Scotiabank may issue one or more Letters of Credit
hereunder and shall be deemed to be the Issuer with respect to such Letters of
Credit.
"KKR" means Kohlberg Kravis Xxxxxxx & Co., L.P.
"KSL" is defined in the preamble.
"Lender Assignment Agreement" means a lender assignment agreement
substantially in the form of Exhibit H hereto.
"Lender Default" means, as a result of the appointment of a receiver or
conservator with respect to any Lender, at the direction or request of any
regulatory agency or authority, either (a) the refusal or failure (which has not
been retracted or cured) of such Lender to make available its portion of any
Borrowing or to fund its portion of any unreimbursed payment under Section 2.6.1
or (b) such Lender having notified the Administrative Agent and/or the Borrower
that it does not intend to comply with its obligations under Section 2.1 or
under Section 2.6.1.
"Lenders" is defined in the preamble and, in addition, shall include any
Eligible Assignee that becomes a Lender pursuant to Section 10.11.1.
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"Lender's Environmental Liability" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and experts' fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
claim or proceeding) which may at any time be imposed upon, incurred by or
asserted or awarded against any Indemnified Party in connection with or arising
from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from the Borrower's or any of the Borrower's
Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or any of
its Subsidiaries of any Environmental Laws (including any Environmental
Claim); or
(d) the imposition of any lien for damages caused by or the recovery
of any costs for the cleanup, release or threatened release of Hazardous
Material by the Borrower or any of its Subsidiaries, or in connection with
any property owned or formerly owned by the Borrower or any of its
Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, a maximum amount
of $20,000,000, as such amount may be permanently reduced from time to time
pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Total Funded Debt (net of unrestricted cash of the Borrower and
its Restricted Subsidiaries) outstanding on the last day of such Fiscal
Quarter
to
(b) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters (provided that, with respect
to any Restricted Subsidiary created or acquired at any time during such
period, Adjusted EBITDA of such Restricted Subsidiary shall be determined
on a pro forma basis as if such Restricted Subsidiary were created or
acquired on the first day of such period);
provided, however, that in computing the Leverage Ratio for
(c) the second Fiscal Quarter of the 1997 Fiscal Year, the amount
set forth in clause (b) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter, multiplied by four;
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(d) the third Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in clause (b) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the immediately preceding Fiscal Quarter, multiplied by two;
and
(e) the fourth Fiscal Quarter of the 1997 Fiscal Year, the amount
set forth in clause (b) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the two immediately preceding Fiscal Quarters, multiplied by
4/3.
"LIBO Rate" means, with respect to each day during each Interest Period
pertaining to a LIBO Rate Loan, the rate of interest per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Telerate
Page 3750 as of 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear
on Telerate Page 0000, "XXXX Rate" for the purposes of this paragraph shall be
determined by reference to such other publicly available service for displaying
eurodollar rates as may be agreed upon by the Agents and the Borrower or, in the
absence of such agreement, "LIBO Rate" for the purposes of this paragraph shall
instead be the rate per annum equal to the arithmetic average of the respective
rates notified to the Administrative Agent by each of the Reference Lenders as
the rate at which such Reference Lender is offered Dollar deposits at or about
11:00 a.m., London time, two Business Days prior to the beginning of such
Interest Period, in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its LIBO Rate Loans are
then being conducted for delivery.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" below its name in Annex I hereto or
as set forth in a Lender Assignment Agreement, or such other office of a Lender
as designated from
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time to time by notice from such Lender to the Borrower and the Administrative
Agent, whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, charge, lien (statutory or other), escrow or similar encumbrance
of any kind, or any other type of similar preferential arrangement (including
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Loan Documents" collectively means this Agreement, the Notes (if any),
the Letters of Credit, the Pledge Agreement, the Guaranty, each Borrowing
Request, each Issuance Request and the Fee Letter.
"Loans" means, as the context may require, a Revolving Loan, a Term A
Loan, a Term B Loan or a Swing Line Loan, of any type.
"Material Adverse Change" means any change in the business, assets,
operations, properties or financial condition of the Borrower and its Restricted
Subsidiaries taken as a whole that would materially adversely affect the ability
of the Borrower and the other Obligors taken as a whole to perform their
obligations under this Agreement and the other Loan Documents taken as a whole.
"Material Adverse Effect" means a circumstance or condition affecting the
business, assets, operations, properties or financial condition of the Borrower
and its Restricted Subsidiaries taken as a whole that would materially adversely
affect (a) the ability of the Borrower and the other Obligors taken as a whole
to perform their obligations under this Agreement and the other Loan Documents
taken as a whole or (b) the rights and remedies of the Administrative Agent and
the Lenders under this Agreement and the other Loan Documents taken as a whole.
"Material Restricted Subsidiary" means, at any time, each Restricted
Subsidiary having at such time either (a) net sales (on a consolidated basis,
including each of its Subsidiaries that
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constitute Restricted Subsidiaries, but excluding revenues received by any
Restricted Subsidiary from the Borrower or any other Restricted Subsidiary) for
the applicable Test Period in excess of 5% of the net sales of the Borrower and
its Restricted Subsidiaries for such Test Period or (b) total assets (on a
consolidated basis, including each of its Subsidiaries that constitute
Restricted Subsidiaries), as of the last day of the preceding Fiscal Quarter,
constituting in excess of 5% of the total assets of the Borrower and its
Restricted Subsidiaries as of such day, in each case, based upon the Borrower's
most recent annual or quarterly financial statements delivered to the
Administrative Agent under Section 7.1.1 in accordance with GAAP (it being
acknowledged and understood that, in the event the determination of whether a
Restricted Subsidiary is a Material Restricted Subsidiary is to be made on or
about the date such Restricted Subsidiary was created or acquired, such
determination shall be made on a pro forma basis as if such Restricted
Subsidiary were a Restricted Subsidiary at the commencement of such Test Period
for purposes of clause (a) above and on the last day of such Fiscal Quarter for
purposes of clause (b) above; provided, however, that, notwithstanding anything
to the contrary in the foregoing, if, at any time, "Material Restricted
Subsidiaries" as defined above, taken together with the Borrower, on a
consolidated basis, account for less than 80% of Adjusted EBITDA of the Borrower
and its Restricted Subsidiaries for the applicable Test Period based upon the
Borrower's most recent annual or quarterly financial statements delivered to the
Administrative Agent pursuant to Section 7.1.1, then the term "Material
Restricted Subsidiaries" shall be deemed to include such number of the largest
(pursuant to the foregoing criteria) Restricted Subsidiaries as is sufficient to
cause "Material Restricted Subsidiaries" to account for at least 80% of such
Adjusted EBITDA as set forth above.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan," within the meaning of
Section 4001(a)(3) of ERISA, with respect to which the Borrower or any ERISA
Affiliate may have any liability.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto with similar authority.
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"Net Disposition Proceeds" means, as to any Disposition by a Person (other
than a Disposition permitted pursuant to clause (a) of Section 7.2.7), proceeds
in cash as and when received by such Person, net of (a) the costs and expenses
relating to such Disposition, (b) the amount of all taxes paid or reasonably
estimated to be payable by such Person in connection therewith, but Net
Disposition Proceeds shall include the excess, if any, of the estimated taxes
payable in connection with such Disposition over the actual amount of taxes
paid, immediately after the payment of such taxes, (c) amounts required to be
applied to repay principal, interest and prepayment premiums and penalties on
Indebtedness secured by a Lien on the asset which is the subject of such
Disposition, and (d) the amount of any reasonable reserve established in
accordance with GAAP against any liabilities (other than any taxes deducted
pursuant to clause (b) above) associated with the assets sold or disposed of and
retained by the Borrower or any of its Restricted Subsidiaries (provided that
the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net
Disposition Proceeds realized on the date of such reduction).
"Net Income" means, for any period, the net income (or loss) included in
accordance with GAAP as such on the consolidated financial statements of the
Borrower and its Restricted Subsidiaries for such period.
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money or incurrence of Capitalized Lease Liabilities by any Person,
cash proceeds received by such Person in connection therewith, net of all costs
and expenses paid in connection therewith.
"Non-Defaulting Lender" means and includes each Lender other than a
"Defaulting Lender".
"Non-Performing Lender" means any Lender that either (a) refuses or fails
(which refusal or failure has not been retracted or cured) to make available its
portion of any Borrowing or to fund its portion of any unreimbursed payment
under Section 2.6.1 or (b) has notified the Administrative Agent and/or the
Borrower
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that it does not intend to comply with its obligations under Section 2.1 or
under Section 2.6.1.
"Non-U.S. Lender" has the meaning specified in Section 4.6(d).
"Non-U.S. Participant" means a Participant that is not incorporated or
organized in or under the laws of the United States or a state thereof.
"Note" means, as the context may require, a Revolving Note, a Term A Note,
a Term B Note or a Swing Line Note.
"Obligations" means all monetary obligations (whether absolute or
contingent, matured or unmatured, direct or indirect, xxxxxx or inchoate, sole,
joint, several or joint and several, due or to become due, heretofore or
hereafter contracted or acquired) of the Borrower and each other Obligor to any
Lender or Issuer or Agent arising under this Agreement, any Rate Protection
Agreement, the Notes, the Letters of Credit and each other Loan Document.
"Obligor" means, as the context may require, the Borrower, each Restricted
Subsidiary and any other Person (other than any Agent, the Issuer or any Lender)
to the extent such Person is obligated under this Agreement or any other Loan
Document.
"Ordinary Capital Expenditures" means, for any period, the lesser of (a)
Capital Expenditures actually made during such period and (b) an amount equal to
3.5% of Consolidated Gross Revenues for such period.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation or limited liability agreement and any
certificate of designations or similar instrument relating to the rights of
preferred shareholders of such Person.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or
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from the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA (other than a Multiemployer Plan) with respect to
which the Borrower or any ERISA Affiliate may have any liability.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Revolving Loans, Term A Loans or Term B Loans, as the case may be,
as set forth below its name in Annex I hereto under the applicable column
heading or as set forth in a Lender Assignment Agreement under the applicable
column heading, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and the Eligible
Assignee(s) and delivered pursuant to Section 10.11.1. A Lender shall not have
any Commitment to make Revolving Loans, Term A Loans or Term B Loans (as the
case may be) if its percentage under the respective column heading is zero (0%).
"Permitted Acquisition" is defined in clause (i) of Section 7.2.5.
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, joint stock company, firm, association, trust or
unincorporated organization, government, governmental agency, court or any other
legal entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
is making or is obligated to make contributions and includes any Pension Plan.
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"Pledge Agreement" means the Pledge Agreement executed and delivered by
the Borrower, substantially in the form of Exhibit F hereto, as amended,
supplemented, amended and restated or otherwise modified.
"Quarterly Payment Date" means the last day of each January, April, July
and October, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower pursuant to the
terms of this Agreement under which the counterparty to such agreement is (or at
the time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate of a Lender.
"Reference Lenders" means Scotiabank and Bank of America Illinois.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in Section 10.11.1(c).
"Reimbursement Obligation" is defined in Section 2.6.3.
"Rentals" means, for any period and determined in accordance with GAAP,
all fixed payments made by the Borrower or any of its Restricted Subsidiaries,
as lessee or sublessee under any lease of real or personal property (including
as such all payments that the Borrower or any of its Restricted Subsidiaries, as
the case may be, is obligated to make to the lessor on termination of the lease
or surrender of the property), but shall be exclusive of any amounts required to
be paid by the Borrower or any such Restricted Subsidiary (whether or not
designated as rents or additional rents) on account of maintenance, repairs,
insurance, taxes, assessments and similar charges.
"Replaced Lender" is defined in Section 4.4.
"Replacement Lender" is defined in Section 4.4.
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"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having a majority of the Commitments,
taken as a whole, of the Non- Defaulting Lenders); and
(b) on and after Closing Date, Non-Defaulting Lenders having or
holding a majority of the sum (without duplication) of the aggregate
outstanding principal amount of the Loans, the aggregate amount of the
Letter of Credit Outstandings and the unfunded amount of the Revolving
Loan Commitment Amount, in each case, taken as a whole, of the
Non-Defaulting Lenders).
"Required Revolving Lenders" means, at any time, Non-Defaulting Lenders
having or holding a majority of the sum (without duplication) of the aggregate
outstanding principal amount of the Revolving Loans and Swing Line Loans, the
aggregate amount of the Letter of Credit Outstandings and the unfunded amount of
the Revolving Loan Commitment Amount, in each case, taken as a whole, of the
Non-Defaulting Lenders.
"Required Term Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having a majority of the Term A Loan
Commitment and the Term B Loan Commitment, taken as a whole, of the
Non-Defaulting Lenders; and
(b) on and after Closing Date, Non-Defaulting Lenders holding a
majority of the aggregate outstanding principal amount of the Term Loans,
taken as a whole, of the Non- Defaulting Lenders.
"Requirement of Law" means, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
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"Responsible Officer" means, with respect to any Person, its chief
executive officer, its president or any vice president, managing director, chief
financial officer, treasurer, controller or other officer thereof having
substantially the same authority and responsibility.
"Restricted Subsidiary" means each Subsidiary of the Borrower other than
an Unrestricted Subsidiary.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Revolving Loans pursuant to clause (a) of Section
2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $175,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) Xxxxx 00, 0000 (xx the initial Credit Extension has not occurred
on or prior to such date);
(b) the Business Day immediately preceding April 30, 2004 (i.e., the
seven year anniversary date of the Closing Date);
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clause (c) or (d),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
"Revolving Note" means a promissory note, if any, executed by the Borrower
and payable to any Lender, in the form of
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Exhibit A-1 hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate Indebtedness of
the Borrower to such Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"S&P" means Standard & Poor's Rating Services.
"Scotiabank" is defined in the preamble.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Subordinated Indenture" means the Indenture dated as of April 30,
1997, between the Borrower and First Trust of New York, National Association, as
trustee, pursuant to which the Senior Subordinated Notes were issued.
"Senior Subordinated Notes" means, collectively, the 10 1/4% Senior
Subordinated Notes due 2007 of the Borrower issued pursuant to the Senior
Subordinated Indenture.
"Specified Real Properties" means all or any part of the real property
listed on Schedule II hereto, including any fixtures or improvements thereon.
"Stated Amount" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof, as such
amount may be amended from time to time.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) with respect to all Swing Line Loans and Revolving Loans, April
30, 2004 (i.e., the seven year anniversary date of the Closing Date);
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(b) with respect to all Term A Loans, April 30, 2005 (i.e., the
eight year anniversary date of the Closing Date); and
(c) with respect to all Term B Loans, April 30, 2006 (i.e., the nine
year anniversary date of the Closing Date).
"Subordinated Debt" means the unsecured Indebtedness of the Borrower
evidenced by the Senior Subordinated Indenture and the Senior Subordinated
Notes.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
capital stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time capital
stock (or other ownership interest) of any other class or classes of such entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person. Unless the context otherwise specifically requires, the term
"Subsidiary" shall be a reference to a Subsidiary of the Borrower.
"Supermajority Revolving Lenders" means, at any time, Non-Defaulting
Lenders having or holding at least 66-2/3% of the sum (without duplication) of
the aggregate outstanding principal amount of the Revolving Loans and the Swing
Line Loans, the aggregate amount of the Letter of Credit Outstandings and the
unfunded amount of the Revolving Loan Commitment Amount, in each case, taken as
a whole, of the Non-Defaulting Lenders.
"Supermajority Term A and B Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having at least 66-2/3% of the Term A
Loan Commitment and Term B Loan Commitment, taken as a whole, of the
Non-Defaulting Lenders; and
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(b) on and after the Closing Date, Non-Defaulting Lenders having or
holding at least 66-2/3% of the aggregate outstanding principal amount of
the Term Loans, taken as a whole, of the Non-Defaulting Lenders.
"Swing Line Lender" means, subject to the terms of this Agreement,
Scotiabank, its successors and assigns.
"Swing Line Loan" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment Amount" means, on any date, $10,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note, if any, executed by the
Borrower and payable to the Swing Line Lender pursuant to clause (b) of Section
2.7, in the form of Exhibit A-4 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to the Swing Line Lender resulting from outstanding
Swing Line Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 9.4.
"Tax Sharing Agreement" means that certain Tax Sharing Agreement, dated as
of April 30, 1997, by and between KSL and each of its Affiliates parties
thereto.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, respectively, taxes imposed on any Lender or the
Administrative Agent as a result of a present or former connection between such
Lender or the Administrative Agent and
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the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Lender or the Administrative Agent
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on the service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for Dollar deposits).
"Term A Loan" is defined in clause (a) of Section 2.1.3.
"Term A Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term A Loans pursuant to clause (a) of Section
2.1.3.
"Term A Loan Commitment Amount" means, on any date, $50,000,000.
"Term A Loan Commitment Termination Date" means the earliest of
(a) Xxxxx 00, 0000 (xx the Term A Loans have not been made on or
prior to such date);
(b) the Closing Date (immediately after the making of the Term A
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term A Loan
Commitments shall terminate automatically and without any further action.
"Term A Note" means a promissory note, if any, executed by the Borrower
and payable to any Lender, in the form of Exhibit A-2 hereto (as such promissory
note may be amended,
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endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Term A
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term B Loan" is defined in clause (b) of Section 2.1.3.
"Term B Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term B Loans pursuant to clause (b) of Section
2.1.3.
"Term B Loan Commitment Amount" means, on any date, $50,000,000.
"Term B Loan Commitment Termination Date" means the earliest of
(a) Xxxxx 00, 0000 (xx the Term B Loans have not been made on or
prior to such date);
(b) the Closing Date (immediately after the making of the Term B
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term B Loan
Commitments shall terminate automatically and without any further action.
"Term B Note" means a promissory note, if any, executed by the Borrower
and payable to any Lender, in the form of Exhibit A-3 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Lender resulting
from outstanding Term B Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Term Loans" means, collectively, the Term A Loans and the Term B Loans.
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"Test Period" means, for any determination under this Agreement at any
time, the four consecutive Fiscal Quarters of the Borrower then last ended.
"Total Funded Debt" means, on any date, the outstanding principal amount
of all Indebtedness of the Borrower and its Restricted Subsidiaries of the type
referred to in clause (a) and clause (c), and unreimbursed drawings in respect
of Indebtedness described in clause (b), in each case of the definition of
"Indebtedness" (exclusive of intercompany Indebtedness between the Borrower and
any of its Subsidiaries or between any Subsidiaries of the Borrower).
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in effect
in the State of New York.
"UCP" is defined in Section 2.6.6.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Borrower that is
first created or acquired by the Borrower or a Restricted Subsidiary after the
Closing Date to the extent the acquisition price therefor is funded by the
Borrower or such Restricted Subsidiary in accordance with clause (j) of Section
7.2.5 and such Subsidiary is designated by the Borrower as an Unrestricted
Subsidiary in a written notice delivered to the Agents prior to or reasonably
promptly after such creation or acquisition or (b) any Subsidiary of the
Borrower that is first created or acquired after the Closing Date by another
Unrestricted Subsidiary created or acquired in accordance with the provisions of
this definition or (c) any Restricted
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Subsidiary existing on the Closing Date which is subsequently re-designated as
an Unrestricted Subsidiary by the Borrower in a written notice to the Agents,
provided that such re-designation shall be deemed to be an Investment pursuant
to clause (j) of Section 7.2.5 on the date of such re-designation in an
Unrestricted Subsidiary in an amount equal to the sum of (x) the net worth of
such re-designated Restricted Subsidiary immediately prior to such
re-designation (such net worth to be calculated without regard to any Guaranty
provided by such re-designated Restricted Subsidiary) and (y) the aggregate
principal amount of any Indebtedness owed by such re-designated Restricted
Subsidiary to the Borrower or any other Restricted Subsidiary immediately prior
to such re-designation, all calculated, except as set forth in the parenthetical
to the foregoing clause (x), on a consolidated basis in accordance with GAAP;
provided that in any case (in the case of either clause (a), (b) or (c) above),
the provisions of clause (j) of Section 7.2.5 are not breached in connection
with such creation or acquisition or re-designation, and that promptly after the
date of such creation or acquisition or re-designation, as applicable, such
Subsidiary and the Borrower enter into a tax sharing agreement containing terms
that, in the reasonable judgment of the Agents, provide for appropriate
allocation of tax liabilities and benefits. Notwithstanding anything to the
contrary herein, (i) a Restricted Subsidiary cannot be a Subsidiary of an
Unrestricted Subsidiary, (ii) an Unrestricted Subsidiary cannot be designated as
a Restricted Subsidiary except with prior written notice to the Agents and as
otherwise provided in clause (i) of Section 7.2.5, (iii) at the time of any
written re-designation by the Borrower to the Agents of any Unrestricted
Subsidiary as a Restricted Subsidiary, the Unrestricted Subsidiary so
re-designated shall no longer constitute an Unrestricted Subsidiary, (iv) no
Unrestricted Subsidiary may be re-designated as a Restricted Subsidiary if a
Default or Event of Default has occurred and is continuing or would result from
such re-designation, (v) no Restricted Subsidiary may be re-designated as an
Unrestricted Subsidiary if a Default or Event of Default has occurred and is
continuing or would result from such re-designation and (vi) in order for any
Unrestricted Subsidiary to be permitted to be created or acquired or to continue
to exist, no recourse whatsoever may be had to the Borrower or any of its
Restricted Subsidiaries or any of their respective properties in respect of
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any obligations or liabilities (contingent or otherwise) of such Unrestricted
Subsidiary except to the extent the aggregate maximum amount of such recourse
constitutes an Investment made and permitted pursuant to clause (j) of Section
7.2.5.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"wholly-owned" means, with respect to any direct or indirect Subsidiary,
any Subsidiary all of the outstanding Capital Stock of which is owned directly
or indirectly by the Borrower.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each other Loan Document, the Disclosure
Schedule, or any Borrowing Request, Issuance Request, Continuation/ Conversion
Notice, Compliance Certificate, Closing Date Certificate, solvency certificate,
Lender Assignment Agreement, notice or other communications delivered from time
to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document, or in
any Compliance Certificate or solvency certificate, shall be interpreted, all
accounting determinations and computations hereunder or thereunder (including
under Section 7.2.4) shall be made, and all financial statements required to be
delivered hereunder or thereunder shall
be prepared, in accordance with, those generally accepted accounting principles
("GAAP") applied in the preparation of the financial statements referred to in
clause (a) of Section 5.1.5;
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provided, however, that at any time the computations determining compliance with
Section 7.2 utilize accounting principles different from those utilized in the
financial statements furnished to the Lenders pursuant to Section 7.1.1, such
financial statements shall be accompanied by reconciliation worksheets. Unless
otherwise expressly provided, all financial covenants and defined financial
terms shall be computed on a consolidated basis for the Borrower and its
Restricted Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Section 2.1.4, Section 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than Swing
Line Loans) pursuant to the Commitments and the Swing Line Lender
severally agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment, in each case as described in this Section 2.1; and
(b) the Issuer severally agrees that it will issue Letters of Credit
pursuant to Section 2.1.2, and each other Lender that has a Revolving Loan
Commitment severally agrees that it will purchase participation interests
in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment.
(a) From time to time on any Business Day occurring from and after the Closing
Date but prior to the Revolving Loan Commitment Termination Date, each Lender
that has a Revolving Loan Commitment will make loans (relative to such Lender,
its "Revolving Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of each Borrowing of the Revolving Loans requested by the
Borrower to be made on such day. The Commitment of each such Lender described in
this Section 2.1.1 is herein referred to as its "Revolving Loan
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Commitment". On the terms and subject to the conditions hereof, the Borrower may
from time to time borrow, prepay and reborrow the Revolving Loans.
(b) From time to time on any Business Day occurring from and after the
Closing Date but prior to the Revolving Loan Commitment Termination Date, the
Swing Line Lender will make loans (the "Swing Line Loans") to the Borrower equal
to the principal amount of the Swing Line Loan requested by the Borrower to be
made on such day. The Commitment of the Swing Line Lender described in this
clause (b) is herein referred to as its "Swing Line Loan Commitment". On the
terms and subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow Swing Line Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Closing Date but prior to the
Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby or documentary letters of credit (the
"Letters of Credit") for the account of the Borrower in the Stated Amount
requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby Letter of
Credit previously issued hereunder to a date not later than the earlier of
(x) the Revolving Loan Commitment Termination Date and (y) one year from
the date of such extension.
SECTION 2.1.3. Term Loan Commitment. In a single Borrowing (which shall be
a Business Day) occurring on or prior to the applicable Commitment Termination
Date, each Lender that has a Term A Loan Commitment or a Term B Loan Commitment,
as applicable,
(a) will make loans (relative to such Lender, its "Term A Loans") to
the Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing of Term A Loans requested by the Borrower to be made on such
day (with the commitment of each such Lender described in
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this clause (a) herein referred to as its "Term A Loan Commitment"); and
(b) will make loans (relative to such Lender, its "Term B Loans") to
the Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing of Term B Loans requested by the Borrower to be made on such
day (with the commitment of each such Lender described in this clause (b)
herein referred to as its "Term B Loan Commitment").
No amounts paid or prepaid with respect to Term A Loans or Term B Loans may be
reborrowed.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No Lender
shall be permitted or required to make any Loan if, after giving effect thereto,
the aggregate outstanding principal amount of
(a) all Revolving Loans
(i) of all Lenders with a Revolving Loan Commitment and the
outstanding principal amount of all Swing Line Loans, together with
the aggregate amount of all Letter of Credit Outstandings, would
exceed the then existing Revolving Loan Commitment Amount; or
(ii) of such Lender with a Revolving Loan Commitment, together
with such Lender's Percentage of the aggregate amount of all Letter
of Credit Outstandings, and such Lender's Percentage of the
outstanding principal amount of all Swing Line Loans, would exceed
such Lender's Percentage of the then existing Revolving Loan
Commitment Amount;
(b) all Term A Loans or all Term B Loans (as the case may be)
(i) of all Lenders made on the Closing Date would exceed the
Term A Loan Commitment Amount (in the case of Term A Loans) or the
Term B Loan Commitment Amount (in the case of Term B Loans); or
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(ii) of such Lender with a Term A Loan Commitment or with a
Term B Loan Commitment, as applicable, made on the Closing Date
would exceed such Lender's Percentage of the Term A Loan Commitment
Amount (in the case of Term A Loans) or the Term B Loan Commitment
Amount (in the case of Term B Loans); or
(c) all Swing Line Loans would exceed the then existing Swing Line
Loan Commitment Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. The Issuer shall not be permitted or required to issue any Letter of
Credit if,
(a) after giving effect thereto, (i) the aggregate amount of all
Letter of Credit Outstandings would exceed the Letter of Credit Commitment
Amount or (ii) the sum of the aggregate amount of all Letter of Credit
Outstandings plus the aggregate principal amount of all Revolving Loans
and Swing Line Loans then outstanding would exceed the Revolving Loan
Commitment Amount; or
(b) a Lender Default known to the Issuer exists or the Issuer
becomes aware of any Lender being a Non-Performing Lender, unless the
Issuer has entered into arrangements reasonably satisfactory to it and the
Borrower to eliminate the Issuer's risk with respect to the participation
in Letter of Credit Outstandings by each Defaulting Lender and each
Non-Performing Lender, including cash collateralizing such Defaulting
Lender's (or such Non-Performing Lender's, as the case may be) Percentage
of Letter of Credit Outstandings in respect thereof.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount, the Swing Line Loan Commitment Amount
or the Letter of Credit Commitment Amount on the Business Day so specified by
the
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Borrower; provided, however, that all such reductions shall require at least
three Business Day's prior notice to the Administrative Agent (and the Swing
Line Lender in the case of a reduction to the Swing Line Commitment Amount) and
shall be permanent, and any partial reduction of any Commitment Amount shall be
in a minimum amount of $1,000,000 and in an integral multiple of $250,000.
SECTION 2.2.2. Mandatory. On each anniversary date of the Closing Date set
forth below, the then Revolving Loan Commitment Amount shall, without any
further action, automatically and permanently be reduced to the amount set forth
opposite such anniversary date (unless on or prior to any such date the then
Revolving Loan Commitment Amount shall have been reduced to a lesser amount, in
which case the Revolving Loan Commitment Amount shall be equal to such lesser
amount):
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Anniversary Date Revolving Loan
of the Closing Date Commitment Amount
------------------- -----------------
three year anniversary date $163,750,000
four year anniversary date $152,500,000
five year anniversary date $137,500,000
six year anniversary date $118,750,000;
provided, however, that on the Revolving Loan Commitment Termination Date, the
Revolving Loan Commitment Amount shall be zero.
SECTION 2.3. Borrowing Procedures. Loans (other than Swing Line Loans)
shall be made by the Lenders in accordance with Section 2.3.1, and Swing Line
Loans shall be made by the Swing Line Lender in accordance with Section 2.3.2.
SECTION 2.3.1. Borrowing Procedure. In the case of other than Swing Line
Loans, by delivering a Borrowing Request to the Administrative Agent on or
before 2:00 p.m., New York City time, on a Business Day, the Borrower may from
time to time irrevocably request, on not less than one Business Day's notice in
the case of Base Rate Loans, or three Business Days' notice in the case of LIBO
Rate Loans, and in either case not more than five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $500,000, in the case of Base Rate Loans,
in a minimum amount of $5,000,000 and an integral multiple of $500,000 or, in
either case, in the unused amount of the applicable Commitment, or, in the case
of Refunded Swing Line Loans, the amount thereof. On the terms and subject to
the conditions of this Agreement, each Borrowing shall be comprised of the type
of Loans, and shall be made on the Business Day, specified in such Borrowing
Request. In the case of other than Swing Line Loans, on or before 12:00 noon
(New York City time) on such Business Day each Lender that has a Commitment to
make the Loans being requested shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders.
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To the extent funds are received from the Lenders, the Administrative Agent
shall make such funds available to the Borrower by wire transfer to the accounts
the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Administrative Agent and the Swing Line Lender on or before
12:00 noon, New York City time, on the Business Day the proposed Swing Line Loan
is to be made, the Borrower may from time to time irrevocably request that Swing
Line Loans be made by the Swing Line Lender in an aggregate minimum principal
amount of $250,000 and an integral multiple of $50,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender, by its close of business on the Business Day telephonic
notice is received by it as provided in this clause (a), to the Borrower by wire
transfer to the account the Borrower shall have specified in its notice
therefor.
(b) If
(i) any Swing Line Loan shall be outstanding for more than five
Business Days;
(ii) any Swing Line Loan is or will be outstanding on a date when
the Borrower requests that a Revolving Loan be made; or
(iii) any Default shall occur and be continuing,
each Lender with a Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Administrative Agent (on
behalf of, and at the request of, the Swing Line Lender), make a Revolving Loan
(which shall initially be funded as a Base Rate Loan) in an amount equal to such
Lender's Percentage of the aggregate principal amount of all such Swing Line
Loans then outstanding (such outstanding Swing Line Loans being hereinafter
referred to as the "Refunded
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Xxxxx Xxxx Xxxxx"). Xx or before 11:00 a.m. (New York City time) on the first
Business Day following receipt by each Lender of a request to make Revolving
Loans as provided in the preceding sentence, each such Lender with a Revolving
Loan Commitment shall deposit in an account specified by the Swing Line Lender
the amount so requested in same day funds and such funds shall be applied by the
Swing Line Lender to repay the Refunded Swing Line Loans. At the time the
aforementioned Lenders make the above referenced Revolving Loans the Swing Line
Lender shall be deemed to have made, in consideration of the making of the
Refunded Swing Line Loans, Revolving Loans in an amount equal to its Percentage
of the aggregate principal amount of the Refunded Swing Line Loans. Upon the
making (or deemed making, in the case of the Swing Line Lender) of any Revolving
Loans pursuant to this clause (b), the amount so funded shall become outstanding
under such Lender's Revolving Note and shall no longer be owed under the Swing
Line Note. All interest payable with respect to any Revolving Loans made (or
deemed made, in the case of the Swing Line Lender) pursuant to this clause (b)
shall be appropriately adjusted to reflect the period of time during which the
Swing Line Lender had outstanding Swing Line Loans in respect of which such
Revolving Loans were made. Each Lender's obligation (in the case of Lenders with
a Revolving Loan Commitment) to make the Revolving Loans referred to in this
clause (b) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default; (iii) any adverse change in the condition (financial
or otherwise) of the Borrower; (iv) the acceleration or maturity of any Loans or
the termination of any Commitment after the making of any Swing Line Loan; (v)
any breach of this Agreement or any other Loan Document by the Borrower or any
Lender; or (vi) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(c) Without in any way limiting the obligation of the Borrower to confirm
in writing any notice it may give hereunder by telephone, the Administrative
Agent or the Swing Line Lender, as the case may be, may act prior to receipt of
written confirmation without liability upon the basis of such telephonic
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notice believed by the Administrative Agent or the Swing Line Lender, as the
case may be, in good faith to be from an Authorized Officer of the Borrower (or
a designee of such Authorized Officer). In each such case the record of the
Administrative Agent or the Swing Line Lender, as the case may be, of the terms
of any such telephonic notice shall be conclusive absent manifest error.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Days' notice in the case of any
Loans that are to be converted into Base Rate Loans, or three Business Days'
notice in the case of any Loans that are to be continued as, or converted into,
LIBO Rate Loans, and in either case not more than five Business Days' notice,
that all, or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $250,000, in the case of any Loans that are to be continued
as, or converted into, LIBO Rate Loans, or an aggregate minimum amount of
$5,000,000 and an integral multiple of $250,000, in the case of any Loans that
are to be converted into Base Rate Loans, be, in the case of Base Rate Loans,
converted into LIBO Rate Loans or be, in the case of LIBO Rate Loans, converted
into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery
of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days (but not more than five Business Days) before the last day
of the then current Interest Period with respect thereto, such LIBO Rate Loan
shall, on such last day, automatically be continued as a LIBO Rate Loan having
an Interest Period of one month); provided, however, that (x) each such
conversion or continuation shall be pro rated among the applicable outstanding
Loans of all Lenders that have made such Loans, and (y) if any Default is in
existence at the applicable time of any proposed continuation of, or conversion
into, any LIBO Rate Loans and the Administrative Agent has, or the Required
Lenders have, determined in its or their sole discretion not to permit such
continuation or conversion and have notified the Borrower telephonically or in
writing thereof, the Borrower may not elect to have a Loan converted into or
continued as a LIBO Rate Loan and any outstanding LIBO Rate Loans shall be
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automatically converted on the last day of the current Interest Period
applicable thereto into a Base Rate Loan.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; provided, further,
that in no event shall the Borrower be obligated to pay to any Lender any
amounts pursuant to Section 4.1, 4.2, 4.3 or 4.5 that would not have arisen but
for such Lender's election pursuant to the first sentence of this Section (it
being acknowledged and agreed that any change in lending office or other action
taken by a Lender in accordance with Section 4.7 shall not be considered to be
an "election" by such Lender under this Section).
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York City time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice, in the case of an
initial issuance of a Letter of Credit for the account of the Borrower, and not
less than three Business Days' prior notice to the date any issued Letter of
Credit containing an "evergreen" or similar automatic extension feature is
scheduled to automatically be extended unless the beneficiary thereof shall have
received notice to the contrary from the Issuer and subject to the Issuer's
right not to extend if the conditions precedent to issuance of such a Letter of
Credit would not be satisfied, in the case of a request for the extension of the
Stated Expiry Date of a standby Letter of Credit, that the Issuer issue, or
extend the Stated Expiry Date of, as the case may be, an irrevocable Letter of
Credit in such form as may be requested by the Borrower and approved by the
Issuer, solely for the purposes described in Section 7.1.10. Each Letter of
Credit shall by its terms be stated to expire on a date (its "Stated Expiry
Date") no later than the earlier to occur of
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(a) in the case of a standby Letter of Credit, (i) the Revolving
Loan Commitment Termination Date or (ii) one year from the date of its
issuance; and
(b) in the case of a documentary Letter of Credit, (i) the Revolving
Loan Commitment Termination Date and (ii) 180 days from the date of its
issuance.
The Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased, to the extent of its Percentage
to make Revolving Loans, a participation interest in such Letter of Credit
(including the Contingent Obligation and any Reimbursement Obligation with
respect thereto), and such Lender shall, to the extent of its Revolving Loan
Commitment Percentage, be responsible for reimbursing promptly (and in any event
within one Business Day) the Issuer for Reimbursement Obligations which have not
been reimbursed by the Borrower in accordance with Section 2.6.3. In addition,
such Lender shall, to the extent of its Percentage to make Revolving Loans, be
entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit (other than the
issuance fees payable to the Issuer of such Letter of Credit pursuant to the
last sentence of Section 3.3.3) and of interest payable pursuant to Section 3.2
with respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrower or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by the Issuer, together with notice of the date (the "Disbursement
Date") such payment shall be made (each such payment, a "Disbursement"). Subject
to the terms and provisions of such Letter of Credit and
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this Agreement, the Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 11:00 a.m., New York City time, on
the first Business Day following the Disbursement Date, the Borrower will
reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit, together
with interest thereon at a rate per annum equal to the rate per annum then in
effect for Base Rate Loans (with the then Applicable Margin for Revolving Loans
accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement; provided, however,
that unless the Borrower shall have notified the Administrative Agent and the
Issuer prior to such time on the Disbursement date, the Borrower will be deemed
to have requested (and shall deliver a Borrowing Request within one Business Day
of the Disbursement Date confirming) that a Swing Line Loan be made in the
amount of such reimbursement and the Administrative Agent shall so notify the
Swing Line Lender who shall, subject to the conditions set forth herein (except
for the notice, the minimum principal amount and the integral amount
requirements), make a Swing Line Loan in such amount (the proceeds of which will
be wired to the Issuer unless the Issuer and the Swing Line Lender are the same
Person, in which case a book-entry transfer may be made). Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
Issuer upon each Disbursement of a Letter of Credit.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse the Issuer, each Lender's (to the extent it has a
Revolving Loan Commitment) obligation under Section 2.6.1 to reimburse the
Issuer, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower or such Lender, as the case may be, may have or have had against the
Issuer or any such Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the
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applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall preclude the right of such Lender to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct as determined by a court of competent
jurisdiction on the part of the Issuer; provided, further, that, in any event,
the Borrower may have a claim against the Issuer, and the Issuer may be liable
to the extent (but only to the extent) of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the Issuer's wilful misconduct or gross negligence as
determined by a court of competent jurisdiction or the Issuer's wilful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a demand for payment strictly complying with the terms and
conditions of such Letter of Credit.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence of any Default of
the nature described in clauses (a) through (d) of Section 8.1.9 with respect to
the Borrower,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding hereunder
shall, without demand upon or notice to the Borrower, be deemed to have
been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of
its obligations under this Section, the Borrower shall be immediately
obligated to reimburse the Issuer for the amount deemed to have been so
paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held
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as collateral security for the Obligations in connection with the Letters of
Credit issued by the Issuer. At such time when the Defaults or Events of Default
giving rise to the deemed disbursements hereunder shall have been cured or
waived, the Administrative Agent shall return to the Borrower all amounts then
on deposit with the Administrative Agent pursuant to this Section which have not
been applied to the satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and, to
the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. The Issuer (except to the extent of its
own gross negligence or wilful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
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None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrower and each such Lender, and shall
not put the Issuer under any resulting liability to the Borrower or any such
Lender, as the case may be.
SECTION 2.6.6. Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce ("UCP") most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in the Letters of Credit) apply to
such Letter of Credit.
SECTION 2.7. Loan Accounts and Notes. (a) The Loans made by each Lender
and the Letters of Credit issued by the Issuer shall be evidenced by one or more
loan accounts or records maintained by such Lender or the Issuer, as the case
may be, in the ordinary course of business. The loan accounts or records
maintained by the Administrative Agent, the Issuer and each Lender shall be
conclusive absent clearly demonstrable error of the amount of the Loans made by
the Lenders to, and the Letters of Credit issued by the Issuer for the account
of, the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Loans and the Reimbursement Obligations.
(b) Upon the request of any Lender made through the Administrative Agent,
solely to facilitate the pledge or assignment of its Loans to any Federal
Reserve Bank pursuant to clause (b) of Section 10.11.1, the Loans made by such
Lender may be evidenced by one or more Notes, instead of or in addition to loan
accounts. Each such Lender is irrevocably authorized by the Borrower to endorse
on the schedules annexed to its Note(s) the date, amount and maturity of each
Loan made, continued or converted by it and the amount of each payment of
principal made
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by the Borrower with respect thereto. Each such Lender's record shall be
conclusive absent clearly demonstrable error; provided, however, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any such Note to such Lender.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) Voluntary Prepayments. From time to time on any Business Day,
the Borrower may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any
(i) Loans (other than Swing Line Loans); provided, however,
that
(A) any such prepayment of the Term A Loans or Term B
Loans shall be applied to the Term A Loans and/or Term B Loans
as the Borrower shall direct (or, in the absence of any such
direction, pro rata among Term A Loans and Term B Loans), and
subject to such application, shall be made pro rata among Term
A Loans and Term B Loans, as applicable, of the same type and,
if applicable, having the same Interest Period of all Lenders
that have made such Term A Loans or Term B Loans (with the
amounts so allocated to the Term A Loans or the Term B Loans
being applied to the remaining amortization payments for the
Term A Loans and the Term B Loans, as the case may be, in such
amounts
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as the Borrower shall determine) and any such prepayment of
Revolving Loans shall be made pro rata among the Revolving
Loans of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Revolving
Loans;
(B) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior written
notice to the Administrative Agent; and
(C) all such voluntary partial prepayments shall be, in
the case of LIBO Rate Loans, in an aggregate minimum amount of
$1,000,000 and an integral multiple of $250,000 and, in the
case of Base Rate Loans, in an aggregate minimum amount of
$1,000,000 and an integral multiple of $250,000; and
(ii) Swing Line Loans, provided that
(A) all such voluntary prepayments shall require prior
telephonic notice to the Administrative Agent (which shall
promptly notify the Swing Line Lender) on or before 1:00 p.m.,
New York City time, on the day of such prepayment (such notice
to be confirmed in writing by the Borrower within 24 hours
thereafter); and
(B) all such voluntary partial prepayments shall be in
an aggregate minimum amount of $250,000 and an integral
multiple of $100,000.
(b) Exceeding the Revolving Loan Commitment Amount. On each date
when the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans and (ii) the aggregate amount of all
Letter of Credit Outstandings exceeds the Revolving Loan Commitment Amount
(as it may be reduced from time to time, including pursuant to Sections
2.2 and 3.1), the Borrower shall make a mandatory prepayment of first, all
Swing Line Loans, then,
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all Revolving Loans and, if necessary, give cash collateral to the
Administrative Agent pursuant to an agreement satisfactory to the Agents
to collateralize Letter of Credit Outstandings, in an aggregate amount
equal to such excess.
(c) Scheduled Repayments of Term A Loans. On the Stated Maturity
Date and on each Annual Payment Date, the Borrower shall make a scheduled
repayment of the aggregate outstanding principal amount, if any, of all
Term A Loans in such amount equal to the amount necessary to fully
amortize the Term A Loans by the aggregate annual principal repayment
amount set forth below (or such other amount after giving effect to any
adjustments in respect of any optional and/or mandatory prepayments of the
Term A Loans) opposite each year of amortization set forth below:
Year of
Amortization Annual
from Principal
Closing Date Repayment Amount
------------ ----------------
1 $ 500,000
2 $ 500,000
3 $ 500,000
4 $ 500,000
5 $ 500,000
6 $ 500,000
7 $ 500,000
8 $46,500,000
(d) Scheduled Repayments of Term B Loans. On the Stated Maturity
Date and on each Annual Payment Date, the Borrower shall make a scheduled
repayment of the aggregate outstanding principal amount, if any, of all
Term B Loans in such amount equal to the amount necessary to fully
amortize the Term B Loans by the aggregate annual principal amount set
forth below (or such other amount after giving effect to any adjustments
in respect of any optional and/or mandatory
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prepayments of the Term B Loans) opposite each year of amortization:
Year of
Amortization Annual
from Principal
Closing Date Repayment Amount
------------ ----------------
1 $ 500,000
2 $ 500,000
3 $ 500,000
4 $ 500,000
5 $ 500,000
6 $ 500,000
7 $ 500,000
8 $ 500,000
9 $46,000,000
(e) Asset Dispositions. If the Borrower or any Restricted Subsidiary
shall at any time make a Disposition (other than a Disposition permitted
pursuant to clause (a) or (b) of Section 7.2.7 and other than a
Disposition constituting the Corporate Sale Transaction) for aggregate Net
Disposition Proceeds of $100,000 or more, then (i) the Borrower or such
Restricted Subsidiary may, within 360 days after the receipt by the
Borrower or such Restricted Subsidiary of the Net Disposition Proceeds of
such Disposition, (A) so long as no Event of Default or payment Default
has occurred and is then continuing or would result therefrom (except in
the case where the Borrower or such Restricted Subsidiary is subject to a
definitive agreement that has been duly and fully executed at a time when
no Event of Default or payment Default existed and pursuant to which it is
obligated to use such Net Disposition Proceeds for a purpose permitted by
this clause (e)), reinvest up to 100% of such Net Disposition Proceeds in
the businesses described in Section 7.1.12, (B) prepay the Term Loans
within such 360-day period in an amount equal to such Net Disposition
Proceeds (or a portion thereof) or (C) retain
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the amount of such Net Disposition Proceeds not so applied pending such
application and (ii) to the extent such Net Disposition Proceeds are not
so applied during such 360-day period and the aggregate amount of all such
Net Disposition Proceeds not so applied since the last prepayment made
pursuant to this clause (e) equals or exceeds $1,000,000, the Borrower
shall make a mandatory prepayment of the Term Loans on the Business Day
immediately succeeding the last day of such 360-day period in an aggregate
amount equal to the portion of such Net Disposition Proceeds not so
applied.
(f) Excess Cash Flow. For each Fiscal Year on the last day of which
the Leverage Ratio for such Fiscal Year is more than 4.5 to 1.0, the
Borrower shall, not later than the day on which financial statements for
such Fiscal Year are required to be delivered pursuant to clause (b) of
Section 7.1.1, make a mandatory prepayment of the Term Loans in an
aggregate amount equal to fifty percent (50%) of Excess Cash Flow, if any,
for such Fiscal Year; provided, that the first Fiscal Year in respect of
which such amount shall be required to be so applied shall be the Fiscal
Year ending October 31, 1998.
(g) Indebtedness Issuance. If the Borrower shall, subject to the
written consent of the Required Lenders, issue indebtedness for borrowed
money or incur Capitalized Lease Liabilities not otherwise permitted to be
issued or incurred pursuant to Section 7.2.2, the Borrower shall promptly
upon, and in no event later than five Business Days following, receipt by
the Borrower of Net Issuance Proceeds of such issuance or incurrence, make
a mandatory prepayment of the Term Loans in an aggregate amount equal to
the amount of such Net Issuance Proceeds.
(h) Acceleration of Maturity. Immediately upon any acceleration of
the Stated Maturity Date of any Loans pursuant to Section 8.2 or Section
8.3, the Borrower shall repay all the Loans, unless, pursuant to Section
8.3, only a portion of all the Loans is so accelerated (in which case the
portion so accelerated shall be so prepaid).
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Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.5. No prepayment of
principal of any Revolving Loans or Swing Line Loans pursuant to clause (a) or
(b) of this Section shall cause a reduction in the Revolving Loan Commitment
Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. Amounts prepaid shall be applied as set forth
in this Section.
(a) Subject to clause (b) and clause (c) below, each prepayment or
repayment of the principal of the Loans shall be applied, to the extent of
such prepayment or repayment, as the Borrower shall direct (and in the
absence of such direction, shall be applied first, to the principal amount
thereof being maintained as Base Rate Loans, and second, to the principal
amount thereof being maintained as LIBO Rate Loans with the shortest
Interest Periods remaining); provided, that prepayments or repayments of
LIBO Rate Loans not made on the last day of the Interest Period with
respect thereto, shall be prepaid or repaid subject to the provisions of
Section 4.5 (together with a payment of all accrued interest). In the case
of any mandatory prepayments of Loans are to be made pursuant to clauses
(e), (f) and (g) of Section 3.1.1, at the Borrower's option, exercised in
writing to the Administrative Agent at least one Business Day before such
prepayment is to be distributed, such prepayments pursuant to this Section
3.1.2 shall not be applied to any Loan of a Defaulting Lender, but shall
be allocated ratably to the Loans of the Non-Defaulting Lenders.
(b) Each prepayment of Loans made pursuant to clauses (e), (f) and
(g) of Section 3.1.1 shall be applied
(i) first, until all Term A Loans and Term B Loans have been
paid in full, to a mandatory prepayment of the outstanding principal
amount of all Term A Loans and Term B Loans (with the amount of such
prepayment of the Term A Loans and the Term B Loans being applied to
the remaining Term A Loan or Term B Loan, as the case may be,
amortization payments, pro rata in accordance
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with the amount of each such remaining Term Loan amortization
payment), pro rata among all such outstanding Term A Loans and Term
B Loans, except that (A) with respect to the amount of any such
prepayment that is allocated to the then outstanding Term A Loans or
Term B Loans, the Borrower will, prior to prepaying any such Loans,
give the Administrative Agent telephonic notice (promptly confirmed
in writing) requesting that the Administrative Agent provide notice
of such prepayment to each Lender entitled to receive any portion of
such prepayment, (B) each such Lender will have the right to refuse
any such prepayment by giving written notice of such refusal to the
Borrower within seven Business Days after such Lender's receipt of
notice from the Administrative Agent of such prepayment (and the
Borrower shall not prepay any such Term A Loans or Term B Loans
until such seventh Business Day or such time as the Borrower
receives written notice from such Lender that it consents to such
prepayment, whichever is earlier), (C) 50% of any prepayment so
refused shall be applied pro rata to the remaining Term A Loans and
Term B Loans of Lenders that did not refuse such prepayment pursuant
to subclause (B) above, except that the procedures set forth in
subclauses(A) and (B) above shall be followed with respect to such
additional prepayment application and each such non-refusing Lender
shall have the right to refuse such additional prepayment
application, in which case the amount of such additional prepayment
application refused thereby may be retained by the Borrower, and (D)
the remainder of any prepayment so refused may be retained by the
Borrower; provided, however, that any prepayment made pursuant to
clause (f) of Section 3.1.1 may be applied, at the Borrower's
election, to the Term A Loans and/or the Term B Loans in such
proportions as the Borrower may direct (or, in the absence of any
such direction, pro rata among Term A Loans and Term B Loans) and to
scheduled and unpaid principal installments of the outstanding
principal of such Term A Loans and Term B Loans pro rata in direct
order of maturities, subject to the exception (and subclauses (A)
through (D)
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thereof) set forth above in this clause (b)(i) of Section 3.1.2; and
(ii) second, once all Term A Loans and Term B Loans have been
repaid in full, all prepayments of Loans made pursuant to clauses
(e), (f) and (g) of Section 3.1.1 shall be applied to the repayment
of any outstanding Revolving Loans and a corresponding reduction of
the Revolving Loan Commitment Amount in accordance with Section
2.2.2.
(c) Interest Periods. In lieu of making any payment pursuant to
clause (e), (f) or (g) of Section 3.1.1 in respect of any LIBO Rate Loan
other than on the last day of the Interest Period therefor, so long as no
Default shall have occurred and be continuing, the Borrower at its option
may deposit with the Administrative Agent an amount equal to the amount of
the LIBO Rate Loan to be prepaid and such LIBO Rate Loan shall be repaid
on the last day of the Interest Period therefor in the required amount (it
being understood and agreed that such LIBO Rate Loan shall not be
considered repaid until such last day of such Interest Period). Such
deposit shall be held by the Administrative Agent in a corporate time
deposit account established on terms reasonably satisfactory to the
Administrative Agent, earning interest (for the account of the Borrower)
at the then- customary rate for accounts of such type. Such deposit shall
cash collateralize the Obligations, provided that the Borrower may at any
time direct that such deposit be applied to make the applicable payment
required pursuant to Section 3.1.1, subject to the provisions of Section
4.5.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Subject to the first sentence of Section 2.3.2
regarding telephonic notice, pursuant to an appropriately delivered Borrowing
Request or Continuation/ Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
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(a) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; provided that all Swing Line Loans
shall always accrue interest at a rate per annum equal to the higher of
(i) the Alternate Base Rate (for Revolving Loans maintained as Base Rate
Loans) and (ii) the sum of the then effective Alternate Base Rate (for
Revolving Loans maintained as Base Rate Loans) plus the Applicable Margin
(for Revolving Loans maintained as Base Rate Loans) minus the Applicable
Commitment Fee; and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate for
such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO Rate
Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan or Reimbursement Obligation is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary
Obligation of the Borrower shall have become due and payable, the Borrower shall
pay, but only to the extent permitted by law, interest (after as well as before
the entry of judgment thereon) on such amounts at a rate per annum equal to the
Alternate Base Rate from time to time in effect plus the Applicable Margin plus
a margin of 2%. Anything herein to the contrary notwithstanding, the obligations
of the Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Borrower shall pay such Lender interest at the highest rate permitted
by applicable law.
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SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part,
of principal outstanding on such Loan on the principal amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on each date occurring at three-month intervals after the
first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon
such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing
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Date and continuing through the applicable Commitment Termination Date, a
commitment fee in an amount equal to the Applicable Commitment Fee, in each case
on such Lender's Percentage of the sum of the average daily unused portion of
the applicable Commitment Amount (net of Letter of Credit Outstandings, in the
case of the Revolving Loan Commitment Amount). All commitment fees payable
pursuant to this Section shall be calculated on a year comprised of 360 days and
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first Quarterly Payment Date following the Closing Date, and on the
Revolving Loan Commitment Termination Date. The making of Swing Line Loans shall
not constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrower to the Lenders.
SECTION 3.3.2. Arrangement and Agency Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account and the account of each Agent (as
the case may be), the fees in the amounts and on the dates set forth in the Fee
Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to
(a) with respect to each standby Letter of Credit, a rate per annum
equal to the then Applicable Margin for Revolving Loans maintained as LIBO
Rate Loans, minus 1/8 of 1% per annum, multiplied by the Stated Amount of
each such Letter of Credit; and
(b) with respect to each documentary Letter of Credit, 1 and 1/8%
per annum multiplied by the Stated Amount of each such Letter of Credit,
such fees being payable quarterly in arrears on each Quarterly Payment Date. The
Borrower further agrees to pay to the Issuer (x) quarterly in arrears payable on
each Quarterly Payment Date, an issuance fee as specified in the Fee Letter and
(y) from time to time promptly after demand, the normal issuance, presentation,
amendment and other processing fees, and other standard
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administrative costs and charges of the Issuer relating to Letters of Credit as
from time to time in effect.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other Governmental Authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue or maintain or
to convert any Loan into, a LIBO Rate Loan shall, upon such determination,
forthwith be suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist, and all
outstanding LIBO Rate Loans shall automatically convert into Base Rate Loans at
the end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion. Each Lender agrees to promptly give notice to
the Administrative Agent and the Borrower when the circumstances causing such
suspension cease to exist.
SECTION 4.2. Deposits Unavailable. If the Required Lenders shall have
determined that (a) Dollar deposits in the relevant amount and for the relevant
Interest Period are neither available to such Required Lenders in the eurodollar
market nor available to them in their respective relevant markets, or (b) by
reason of circumstances affecting the eurodollar market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate
Loans, then, upon notice from the Administrative Agent to the Borrower and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist. Upon receipt of notice from the Administrative Agent that the
Required Lenders are
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unable to determine the LIBO Rate, the Borrower may revoke any Borrowing Request
or Conversion/Continuation Notice then submitted by it. If the Borrower does not
revoke such Borrowing Request or Continuation/Conversion Notice, the Lenders
shall make, convert or continue the Loans, as proposed by the Borrower, in the
amount specified in the applicable notice submitted by the Borrower, but such
Loans shall be made, converted or continued as Base Rate Loans instead of LIBO
Rate Loans.
SECTION 4.3. Change of Circumstances. If, after the Effective Date, the
introduction of or any change in or in the interpretation of, or any change in
the application of, any law or any regulation (including Regulation D of the
Board) or guideline issued by any central bank or other Governmental Authority
(whether or not having the force of law), or by NAIC or any other comparable
agency charged with the interpretation or administration thereof or including
any reserve or special deposit requirement or any tax (other than Taxes covered
by Section 4.6 and taxes on a Lender's general income) or any capital
requirement, has, due to a Lender's compliance the effect, directly or
indirectly, of (i) increasing the cost to such Lender of performing its
obligations hereunder (including the making, continuing or maintaining of any
Loans as or converting any Loans into, LIBO Rate Loans); (ii) reducing any
amount received or receivable by such Lender hereunder or its effective return
hereunder or on its capital; or (iii) causing such Lender to make any payment or
to forego any return based on any amount received or receivable by such Lender
hereunder, then upon demand of such Lender to the Borrower through the
Administrative Agent, accompanied by written notice showing in reasonable detail
the basis for calculation of any such amounts, from time to time, the Borrower
shall be obligated to pay such amounts and shall compensate such Lender promptly
after receipt of such notice and demand for any such cost, reduction, payment or
foregone return. Any certificate of a Lender in respect of the foregoing will be
conclusive and binding upon the Borrower, except for clearly demonstrable error.
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SECTION 4.4. Replacement of Lender. If (a) the Borrower receives notice
from any Lender requesting increased costs or additional amounts under Section
4.3 or 4.6, (b) any Lender is affected in the manner described in Section 4.1,
(c) a Lender becomes a Non-Performing Lender or a Defaulting Lender or (d) S&P
or Xxxxx'x, after the date that any Person becomes a Lender with a Revolving
Loan Commitment, downgrades the long-term certificate of deposit ratings of such
Lender, and the resulting rating is below BBB- or Baa3, respectively, or the
equivalent, then
(i) in each case, the Borrower shall have the right, so long as no
Event of Default shall have occurred and be continuing and unless, (x) in
the case of clause (a) above, such Lender has removed or cured the
conditions which resulted in the obligation to pay such increased costs or
additional amounts or agreed to waive and otherwise forego any right it
may have to any payments provided for under Section 4.3 or 4.6 in respect
of such conditions or (y) in the case of clause (d) above, such Lender's
rating is upgraded by S&P or Xxxxx'x to a rating of at least BBB- or Baa3,
respectively, or the equivalent, and
(ii) in the case of clause (d) above, the Swing Line Lender and the
Issuer shall have the right, but not the obligation,
to replace in its entirety such Lender (the "Replaced Lender"), upon prior
written notice to the Administrative Agent and such Replaced Lender, with one or
more other Eligible Assignee(s) (collectively, the "Replacement Lender")
acceptable to the Administrative Agent and, in the case of clause (a), (b) or
(d) above and in the event the Replaced Lender is a Lender with a Revolving Loan
Commitment, the Swing Line Lender and the Issuer (which acceptance, in each
case, shall not be unreasonably withheld); provided, however, that, at the time
of any replacement pursuant to this Section 4.4, the Replaced Lender and the
Replacement Lender shall enter into (each Replaced Lender hereby unconditionally
agreeing to enter into) one or more Lender Assignment Agreements (appropriately
completed), pursuant to which (A) the Replacement Lender shall acquire all of
the Commitments and outstanding Revolving Loans and Term Loans of, and
participations in Swing Line Loans and Letter of Credit
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Outstandings of, the Replaced Lender and, in connection therewith, shall pay (x)
to the Replaced Lender in respect thereof an amount equal to the sum of (1) an
amount equal to the principal of, and all accrued but unpaid interest on, all
outstanding Loans of the Replaced Lender and (2) an amount equal to all accrued
but theretofore unpaid fees owing to the Replaced Lender pursuant to Section 3.3
and (y) to the Issuer, an amount equal to any portion of the Replaced Lender's
funding of an unpaid drawing under a Letter of Credit as to which the Replaced
Lender is then in default; and (B) the Borrower shall pay to the Replaced Lender
any other amounts payable to the Replaced Lender under this Agreement (including
amounts payable under Sections 3.3.3, 4.1, 4.3, 4.5 and 4.6 which have accrued
to the date of such replacement). Upon the execution of the Lender Assignment
Agreement(s), the payment of the amounts referred to in the preceding sentence
and, if so requested by the Replacement Lender in accordance with clause (b) of
Section 10.11.1, delivery to the Replacement Lender of the applicable Notes
executed by the Borrower, the Replacement Lender shall automatically become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Lender. It is understood and
agreed that if any Replaced Lender shall fail to enter into a Lender Assignment
Agreement in accordance with the foregoing, it shall be deemed to have entered
into such a Lender Assignment Agreement.
SECTION 4.5. Funding Losses. In the event any Lender shall reasonably
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to make, continue or maintain any portion of the principal amount of any
Loan as, or to convert any portion of the principal amount of any Loan into, a
LIBO Rate Loan) as a result of (a) any conversion or repayment or prepayment of
the principal amount of any LIBO Rate Loans on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to Section
3.1 or otherwise, (b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor, (c) any Loans not being made or continued
as, or continued into, LIBO Rate Loans as a result of a withdrawn or revoked
Borrowing Request or
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Continuation/Conversion Notice or for any other reason (other than a default by
any Lender or the Administrative Agent), or (d) any Loans not being continued
as, or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor, then, upon the written notice of such
Lender to the Borrower (with a copy to the Administrative Agent), the Borrower
shall, promptly after its receipt thereof, pay to the Administrative Agent for
the account of such Lender such amounts required to compensate such Lender for
any additional losses, costs or expenses that such Lender may reasonably incur
as a result of such payment, failure to convert or failure to continue,
including any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such LIBO Rate Loan. Such
written notice (which shall set forth in reasonable detail the basis for
requesting such amount and include calculations in reasonable detail in support
thereof) shall, in the absence of clearly demonstrable error, be conclusive and
binding on the Borrower.
SECTION 4.6. Taxes. (a) Any and all payments by the Borrower to each
Lender and the Administrative Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Borrower shall pay all Other Taxes to the
relevant taxing authority or other authority in accordance with applicable law.
(b) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section),
such Lender or the Administrative Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made;
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(ii) the Borrower shall make such deductions and withholdings; and
(iii) the Borrower shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance with
applicable law and shall as promptly as possible thereafter send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original receipt (or
other written evidence) showing payment thereof.
(c) The Borrower agrees to indemnify and hold harmless each Lender and the
Administrative Agent for the full amount of (i) Taxes and (ii) Other Taxes that
are payable by such Lender or the Administrative Agent and any penalties,
interest, additions to tax, expenses or other similar liabilities arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 45 days after the date such Lender or the Administrative Agent makes
written demand therefor.
(d) Each Lender that is not incorporated or organized in or under the laws
of the United States or a state thereof (a "Non-U.S. Lender") shall:
(i) deliver to the Borrower and the Administrative Agent, prior to
the first day on which the Borrower is required to make any payments
hereunder to such Lender, two copies of either United States Internal
Revenue Service Form 1001 or Form 4224 or, in the case of a Non-U.S.
Lender claiming exemption from U.S. Federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors
thereto (and, if such Non-U.S. Lender delivers a Form W-8, a certificate
representing that such Non-U.S. Lender (x) is not a bank for purposes of
Section 881(c) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or submission
made to any Governmental Agency, any application made to a rating agency
or qualification for any exemption
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from tax, securities law or other legal requirements, (y) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and (z) is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the
Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. Federal
withholding tax on payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form of certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Non-U.S. Lender that
shall become a Participant pursuant to Section 10.11.2 or a Lender pursuant to
Section 10.11.1 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this
Section 4.6(d), provided that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
(e) The Borrower shall not be required to indemnify any Non-U.S. Lender or
the Administrative Agent, or to pay any additional amounts to such Non-U.S.
Lender or the Administrative Agent, in respect of U.S. Federal withholding tax
pursuant to clause (a) above to the extent that (i) the obligation to withhold
amounts with respect to U.S. Federal withholding tax existed on the date such
Non-U.S. Lender became a party to this
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Agreement (or, in the case of a Non-U.S. Participant, on the date such
Participant became a Participant hereunder) or as of the date such Non-U.S.
Lender changes its applicable lending office; provided, however, that this
clause (i) shall not apply to the extent that (x) in the case of an assignee
Lender or a Participant or a change in the Lender's applicable lending office,
the indemnity payments or additional amounts any Lender (or Participant) would
be entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the Person making the assignment,
participation, transfer or change in lending office would have been entitled to
receive in the absence of such assignment, participation, transfer or change in
lending office, or (y) such assignment, participation, transfer or change in
lending office had been requested by the Borrower, (ii) the obligation to pay
such additional amounts would not have arisen but for a failure by such Non-U.S.
Lender or Non-U.S. Participant to comply with the provisions of clause (d) above
or (iii) any of the representations or certifications made by a Non-U.S. Lender
or Non-U.S. Participant pursuant to clause (d) above are incorrect at the time a
payment hereunder is made, other than by reason of any change in treaty, law or
regulation having effect after the date such representations or certifications
were made.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which indemnification has been demanded
hereunder, the relevant Lender (to the extent such Lender reasonably determines
in good faith that it will not suffer any adverse effect as a result thereof) or
the Administrative Agent, as applicable, shall cooperate with the Borrower in
challenging such Taxes at the Borrower's expense if so requested by the Borrower
in writing. If any Lender or the Administrative Agent, as applicable, receives a
refund of a Tax for which a payment has been made by the Borrower pursuant to
this Agreement, which refund in the good faith judgment of such Lender or the
Administrative Agent, as the case may be, is attributable by the Borrower, then
such Lender or the Administrative Agent, as the case may be, shall reimburse the
Borrower for such amount as such Lender or the Administrative Agent, as the case
may be, determines to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had
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not been required. Neither the Lenders nor the Administrative Agent shall be
obliged to disclose information regarding its tax affairs or computations to the
Borrower in connection with this clause (f) or any other provision of this
Section 4.6.
(g) Promptly after the date of any payment by the Borrower of Taxes or
Other Taxes, the Borrower shall furnish to each Lender and the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to such Lender or the Administrative
Agent.
SECTION 4.7. Change of Lending Office. Each Lender agrees that, as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would give rise to the operation of Section
4.1, 4.3, 4.6(b) or 4.6(c) with respect to such Lender, it will exercise
commercially reasonable efforts to make, fund or maintain the affected Loans of
such Lender through another lending office and to take such other actions as it
deems appropriate to remove or lessen the impact of such condition and if, as
determined by such Lender in its sole discretion, the making, funding or
maintaining of such affected Loans through such other lending office or the
taking of such other actions would not otherwise adversely affect such Loans or
such Lender and would not, in such Lender's sole discretion, be commercially
unreasonable. Nothing in this Section 4.7 shall affect or postpone any of the
Obligations of the Borrower or the right of any Lender provided in Section 4.1,
4.3, 4.6(b) or 4.6(c).
SECTION 4.8. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 1:00 p.m., New York City time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after 2:00
p.m., New York City time, on such due date shall be deemed to have been
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received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All computations of interest for LIBO Rate Loans and
Base Rate Loans (calculated at the Federal Funds Rate) shall be made on the
basis of a 360-day year and actual days elapsed. All other computations
(including for interest on Base Rate Loans (calculated at other than the Federal
Funds Rate) and fees) shall be made on the basis of a year or 365 or 366 days,
as the case may be, and actual days elapsed. Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.9. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligation (other than
pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in excess of its pro rata
share of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Credit Extensions made by
them as shall be necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided, however, that if
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to a fraction having a numerator of (a) the amount of such selling Lender's
required repayment to the purchasing Lender and a denominator of (b) total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights
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of payment (including pursuant to Section 4.10) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 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 to
share in the benefits of any recovery on such secured claim.
SECTION 4.10. Setoff. Each Lender shall, upon the occurrence and during
the continuance of any Default described in clauses (a) through (d) of Section
8.1.9 or, with the consent of the Required Lenders, upon the occurrence and
during the continuance of any other Event of Default, without prior notice to
the Borrower (any such notice being waived by the Borrower to the fullest extent
permitted by law), have the right to appropriate and apply to the payment of the
Obligations then due and payable to it, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with such
Lender; provided, however, that any such appropriation and application shall be
subject to the provisions of Section 4.9. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extensions. The obligations of the Lenders
and, if applicable, the Issuer, to fund the initial Credit Extensions shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
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SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from the Borrower and each other Obligor, as applicable, (i) good
standing certificates for each such Person from the Secretary of State (or
similar, applicable Governmental Authority) of such Person's state of
incorporation and each state where the Borrower or such Obligor, as the case may
be, is qualified to do business as a foreign corporation as of a recent date,
together with a bring-down certificate by facsimile, dated a date reasonably
close to the Effective Date, and (ii) a certificate, dated the date of the
initial Credit Extension and with counterparts for each Lender, duly executed
and delivered by such Person's Secretary or Assistant Secretary, as to
(a) resolutions of each such Person's Board of Directors then in
full force and effect authorizing, to the extent relevant, the execution,
delivery and performance of this Agreement, the Notes, each other Loan
Document to be executed by such Person and the transactions contemplated
hereby and thereby;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each other
Loan Document to be executed by such Person; and
(c) each Organic Document of such Person, upon which certificates
each Agent and each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of
any such Person canceling or amending the prior certificate of such
Person.
SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
dated the date of the initial Credit Extension and duly executed and delivered
by an Authorized Officer of the Borrower, in which certificate the Borrower
shall agree and acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties in all material respects of
the Borrower made as of such date and under this Agreement, and, at the time
such
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certificate is delivered, such statements shall in fact be true and correct
in all material respects. All documents and agreements required to be appended
to the Closing Date Certificate (which shall include true and complete, as
certified in such certificate, copies of the Senior Subordinated Indenture, a
Senior Subordinated Note specimen, a summary description of the Borrower's and
its Restricted Subsidiaries' material insurance policies, and any tax sharing
agreement (including the Tax Sharing Agreement)) shall be in form and substance
satisfactory to each of the Agents and such certificate shall specify that none
of such documents or agreements have been modified except as set forth in such
certificate.
SECTION 5.1.3. Pledge Agreement. The Administrative Agent shall have
received, with counterparts for each Lender,
(a) the Pledge Agreement, dated as of the date hereof, duly executed
and delivered by an Authorized Officer of the Borrower, together with
certificates evidencing all of the issued and outstanding shares of
Capital Stock pledged pursuant to the Pledge Agreement (which shall
include all of the issued and outstanding shares of Capital Stock of each
direct Domestic Restricted Subsidiary and 65% of the issued and
outstanding shares of Capital Stock of each direct Foreign Restricted
Subsidiary, if any), which certificates shall in each case be accompanied
by undated stock powers duly executed in blank, or, if any securities
subject thereto are uncertificated securities, confirmation and evidence
satisfactory to the Agents that the security interest in such
uncertificated securities has been transferred to and perfected by the
Administrative Agent for the benefit of the Lenders in accordance with
Section 8-313 and Section 8-321 of the Uniform Commercial Code, as in
effect in the State of New York, and all laws otherwise applicable to the
perfection of the pledge of such shares; and
(b) the Agents and their counsel shall be satisfied that
(i) the Lien granted to the Administrative Agent, for the
benefit of the Agents, the Issuers and the
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Lenders, in the collateral described above is a first priority
security interest; and
(ii) no Lien exists on any of the collateral described above
other than the Lien created in favor of the Administrative Agent,
for the benefit of the Agents, the Issuers and the Lenders, pursuant
to the Pledge Agreement.
SECTION 5.1.4. Guaranty. The Administrative Agent shall have received,
with counterparts for each Lender, each Guaranty, dated as of the date hereof,
duly executed and delivered by an Authorized Officer of each Domestic Restricted
Subsidiary (excluding The Fairways Group, L.P. and each of its Subsidiaries).
SECTION 5.1.5. Financial Information, etc. The Administrative Agent shall
have received, with copies for each Lender,
(a) audited combined financial statements of the Borrower and its
Subsidiaries as at October 31, 1996 and unaudited combined financial
statements of the Borrower and its Subsidiaries as at January 31, 1997;
and
(b) pro forma consolidated financial statements of the Borrower and
its Subsidiaries, including therein a pro forma consolidated balance sheet
of the Borrower and its Subsidiaries and pro forma consolidated statements
of earnings and cash flow of the Borrower and its Subsidiaries, in each
case as of January 31, 1997, certified by the chief financial or
accounting Authorized Officer of the Borrower, giving effect to the
consummation of the transactions contemplated by this Agreement and
reflecting the proposed capital structure of the Borrower, and which shall
be satisfactory to each of the Agents.
SECTION 5.1.6. Solvency. The Administrative Agent shall have received,
with counterparts for each Lender, a solvency certificate as to the Borrower and
its Subsidiaries, taken as a whole, duly executed and delivered by the chief
financial or accounting Authorized Officer of the Borrower, dated the date of
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the initial Credit Extension, in the form of Exhibit I attached hereto.
SECTION 5.1.7. Payment of Outstanding Indebtedness, etc. All Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule, together with all interest, all prepayment premiums and other amounts
due and payable with respect thereto, shall have been paid in full from the
proceeds of the initial Credit Extension and the commitments in respect of such
Indebtedness shall have been terminated, and all Liens securing payment of any
such Indebtedness have been released and the Administrative Agent shall have
received all Uniform Commercial Code Form UCC-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.8. Issuance of the Senior Subordinated Notes. The Borrower
shall have duly authorized, executed and delivered the Senior Subordinated
Indenture, the Senior Subordinated Notes and all other certificates, documents
and agreements entered into in connection therewith, and the Administrative
Agent shall have received true and correct copies of the executed Senior
Subordinated Indenture, the Senior Subordinated Notes and all other
certificates, documents, agreements, consents and opinion letters (together
with, to the extent available, reliance letters from the givers of such opinion
letters, permitting the Agents and the Lenders to rely upon the opinions
contained in such opinion letters) furnished pursuant to or in connection
therewith, the terms and conditions of which shall be satisfactory in all
respects to the Agents and the Required Lenders. The Borrower shall have issued
at least $75,000,000 of the Senior Subordinated Notes pursuant to the Senior
Subordinated Indenture and shall have received at least $75,000,000 in gross
cash proceeds therefrom.
SECTION 5.1.9. No Material Adverse Change. No Material Adverse Change has
occurred since October 31, 1996 and no material adverse change has occurred
since October 31, 1996 with respect to the business, assets, operations, results
of operations, condition (financial or otherwise) or prospects of the Borrower
and its Subsidiaries, taken as a whole.
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SECTION 5.1.10. Availability of Revolving Commitments. After giving effect
to the transactions contemplated hereby to occur on or prior to the date of the
initial Credit Extension, no less than $75,000,000 of the Revolving Loan
Commitment Amount shall be available to the Borrower for Revolving Loans.
SECTION 5.1.11. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the date of the initial Credit Extension and addressed
to each Agent, each Lender and the Issuer, from
(a) Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Borrower and
each of the other Obligors, substantially in the form of Exhibit J-1
hereto; and
(b) Xxxx X. Xxxx, Esq., general counsel to the Borrower and each of
the other Obligors, substantially in the form of Exhibit J-2 hereto.
SECTION 5.1.12. Closing Fees, Expenses, etc. The Administrative Agent
shall have received evidence of payment by the Borrower of all accrued and
unpaid fees, costs and expenses to the extent then due and payable under this
Agreement or the Fee Letter on the date of the initial Credit Extension,
together with all reasonable and documented legal costs and expenses of the
Agents to the extent invoiced prior to or on the date of the initial Credit
Extension, including any such fees, costs and expenses arising under or
referenced in Sections 3.3 and 10.3.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and the
Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to Sections 2.1.4 and 2.1.5 and the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension:
(a) the representations and warranties set forth in Article VI and
in each other Loan Document shall, in each case, be true and correct in
all material respects with the same effect as if then made (unless stated
to relate solely
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to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. Subject to Sections 2.3.2
and 2.6.2, the Administrative Agent shall have received a Borrowing Request if
Loans are being requested, or an Issuance Request if a Letter of Credit is being
requested or extended. Each of the delivery of a Borrowing Request or Issuance
Request, the giving of telephonic notice pursuant to Section 2.3.2 and the
deemed making of a request for a Swing Line Loan as set forth in Section 2.6.2
and the acceptance by the Borrower of the proceeds of such Credit Extension
shall constitute a representation and warranty by the Borrower that on the date
of such Credit Extension (both immediately before and after giving effect to
such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct in all material respects.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and each Agent to enter into
this Agreement and to make Credit Extensions hereunder, the Borrower represents
and warrants unto each Agent, the Issuer and each Lender as set forth in this
Article VI.
SECTION 6.1. Organization, etc. The Borrower and each of its Material
Restricted Subsidiaries and each other Obligor
(a) is a corporation validly organized and existing and in good
standing under the laws of the state or jurisdiction of its incorporation;
(b) is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification; and
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(c) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other
Loan Document to which it is a party and to own and hold under lease its
property and to conduct its business substantially as currently conducted
by it,
except, in the case of clauses (a) and (c) above, with respect to each Material
Restricted Subsidiary and each other Obligor other than the Borrower, and, in
the case of clause (b) above, with respect to the Borrower and each Material
Restricted Subsidiary and each other Obligor, to the extent that the failure of
which could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, the execution, delivery
and performance by each other Obligor of each Loan Document executed or to be
executed by it, the granting of the Liens contemplated by the Pledge Agreement,
and the Borrower's, each of its Material Restricted Subsidiaries' and each other
Obligor's participation in the consummation of all aspects of the transactions
contemplated hereby, are in each case within each such Person's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any material contractual restriction binding on or
affecting any such Person or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under the
terms of any material indenture (including the Senior Subordinated
Indenture), loan agreement, lease agreement, mortgage, deed of trust,
agreement or other material instrument to which the Borrower or any of the
Restricted Subsidiaries is a party or by which it or any of its property
or assets is bound;
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(c) contravene (i) any court decree or order binding on or affecting
any such Person or (ii) any law or governmental regulation binding on or
affecting any such Person; or
(d) result in, or require the creation or imposition of, any Lien on
any of such Person's material properties (except as permitted by this
Agreement).
SECTION 6.3. Government Approval, Regulation, etc. No approval, consent,
exemption, authorization or other action by, or notice to, or filing with, any
Governmental Authority or regulatory body or other Person (other than those that
have been, or on the Effective Date will be, duly obtained or made and which
are, or on the Effective Date will be, in full force and effect and other than
those, singly or in the aggregate, with respect to which the failure to obtain
or make could not reasonably be expected to have a Material Adverse Effect) is
necessary or required for the consummation of the transactions contemplated
hereby or the due execution, delivery or performance by, or enforcement against,
the Borrower or any other Obligor of this Agreement, the Notes or any other Loan
Document to which it is a party or the granting of the Liens contemplated by the
Pledge Agreement. Neither the Borrower nor any other Obligor nor any of the
Restricted Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document, executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms; and each other Loan Document executed pursuant hereto by each
other Obligor will, on the due execution and delivery thereof by such Obligor,
constitute the legal, valid and binding obligation of such Obligor enforceable
against such Obligor in accordance with its terms (except, in any case above, as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
principles of equity).
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SECTION 6.5. Financial Information. The financial statements furnished to
the Administrative Agent and the Lenders pursuant to clauses (a) and (b) of
Section 5.1.5 have been prepared in accordance with GAAP consistently applied,
except as otherwise expressly noted therein, and present fairly in all material
respects the consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their operations for the
periods then ended. All balance sheets, all statements of operations,
shareholders' equity, earnings and cash flow and all other financial information
of each of the Borrower and its Subsidiaries furnished pursuant to Section 7.1.1
have been and will for periods following the Effective Date be prepared in
accordance with GAAP consistently applied, except as otherwise expressly noted
therein, and do or will present fairly in all material respects the consolidated
financial condition of the corporations covered thereby as at the dates thereof
and the results of their operations for the periods then ended.
SECTION 6.6. No Material Adverse Change. Except as may have been disclosed
in writing to the Agents and the Lenders prior to the Closing Date, there has
been no Material Adverse Change since October 31, 1996.
SECTION 6.7. Litigation, Labor Controversies, etc.; No Violation of Law.
There is no pending or, to the knowledge of the Borrower, threatened litigation,
action, proceeding, or labor controversy affecting the Borrower or any of its
Material Restricted Subsidiaries, or any of their respective properties,
businesses, assets or revenues, which could reasonably be expected to have a
Material Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except those
Subsidiaries
(a) existing on the Closing Date which are identified in Item 6.8
("Existing Subsidiaries") of the Disclosure Schedule (and each Material
Restricted Subsidiary as of the Closing Date has been so designated
therein);
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(b) which are permitted to have been organized or acquired following
the Closing Date in accordance with Section 7.2.5 or 7.2.7.
SECTION 6.9. Ownership of Properties. The Borrower and each of its
Material Restricted Subsidiaries has good title to, or leasehold interests in,
all of its properties and assets, real and personal, tangible and intangible, of
any nature whatsoever, free and clear in each case of all Liens or claims,
except for Liens permitted pursuant to Section 7.2.3, except where the failure
to have such good title or leasehold interests could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each of the
Borrower and its Material Restricted Subsidiaries owns or are licensed or
otherwise have the right to use all of the trademarks, copyrights, patents,
licenses and other rights that are reasonably necessary for the operation of
each of their respective businesses, without conflict with the rights of any
other Person and free of burdensome restrictions, except where the failure to
have any such rights could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.10. Taxes. The Borrower, its Restricted Subsidiaries and all
other corporations with whom the Borrower or any Restricted Subsidiary join in
the filing of a consolidated return have filed all Federal income tax returns
and other material tax returns and reports, domestic and foreign, required by
law to have been filed, and have paid all material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable except those not yet delinquent or
those which are being diligently contested in good faith. The Borrower, each of
its Restricted Subsidiaries and each such other corporation with whom the
Borrower or any Restricted Subsidiary joins in the filing of a consolidated
return have paid, or have provided adequate reserves (in the good faith
judgement of the management of the Borrower) in accordance with GAAP for the
payment of all such material taxes, assessments, fees and charges relating to
all prior taxable years and the current taxable year of the Borrower, each of
its Restricted Subsidiaries and each such other corporation with whom the
Borrower or any Restricted Subsidiary joins in the filing of a consolidation
return. To the best
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knowledge of the Borrower, there is no proposed tax assessment against the
Borrower or any Restricted Subsidiary or any such other corporation with whom
the Borrower or any Restricted Subsidiary joins in the filing of a consolidated
return that could reasonably be expected to have a Material Adverse Effect.
SECTION 6.11. ERISA Compliance. Except as specifically disclosed in Item
6.11 ("Employee Benefit Plans") of the Disclosure Schedule:
(a) Each Plan is in compliance in all material respects with the
terms thereof and the applicable provisions of ERISA, the Code and other
federal or state law except to the extent that failure to comply would not
result, individually or in the aggregate, in an amount of liability that
could reasonably be expected to have a Material Adverse Effect. The
Borrower and each ERISA Affiliate has made all required contributions to
any Plan subject to Section 412 of the Code, except to the extent that a
failure to do so could not reasonably be expected to have a Material
Adverse Effect, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Pension Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in an
amount which could reasonably be expected to have a Material Adverse
Effect if such Pension Plan were then terminated; and (iii) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA that could reasonably be
expected to have a Material Adverse Effect.
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SECTION 6.12. Compliance with Environmental Laws. The Borrower and each of
its Restricted Subsidiaries is in compliance with all applicable Environmental
Laws in respect of the conduct of its business and the ownership of its
property, except such noncompliance as could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect. Without limiting the effect of
the preceding sentence:
(a) neither the Borrower nor any of its Subsidiaries has received a
complaint, order, citation, notice or other written communication with
respect to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(b) to the best of the Borrower's knowledge, after due inquiry,
there are no environmental, health or safety conditions existing or
reasonably expected to exist at any real property owned, operated, leased
or used by the Borrower or any of its existing or former Subsidiaries or
any of their respective predecessors, including off-site treatment or
disposal facilities used by the Borrower or its existing or former
Subsidiaries for wastes treatment or disposal, which could reasonably be
expected to require any construction or other capital costs or clean-up
obligations to be incurred prior to the Stated Maturity Date for all Term
B Loans in order to assure compliance with any Environmental Law,
including provisions regarding clean-up, to the extent that any of such
conditions, construction or other capital costs or clean-up obligations,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(c) neither the Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned Real Estate (as defined in Section 7.1.8) or
facility relating to its business in a manner that could reasonably be
expected to have a Material Adverse Effect.
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SECTION 6.13. Regulations G, U and X. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no use of any proceeds of any Credit
Extensions will violate F.R.S. Board Regulation G, U or X. Terms for which
meanings are provided in F.R.S. Board Regulation G, U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION 6.14. Accuracy of Information. (a) All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to any Agent, the Issuer or any
Lender on or before the Closing Date (including (i) the Confidential Information
Memorandum and (ii) all information contained in the Loan Documents) for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is true and complete in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided, it being understood and agreed that for purposes of
this clause (a), such factual information shall not include projections and pro
forma financial information.
(b) The projections and pro forma financial information contained in the
factual information referred to in clause (a) above (including the pro forma
consolidated financial statements delivered pursuant to clause (b) of Section
5.1.5) were or are based on good faith estimates and assumptions believed to be
reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
significantly from the projected results.
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each Agent,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit have terminated or expired and all Obligations have been paid
and performed in full, the Borrower will perform or cause to be performed the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower
will furnish, or will cause to be furnished, to each Lender, the Issuer and each
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, unaudited consolidated and consolidating balance sheets of the
Borrower and its Restricted Subsidiaries and, to the extent available,
unaudited consolidated and consolidating balance sheets of the Borrower
and its Subsidiaries, in each case as of the end of such Fiscal Quarter
and unaudited consolidated and consolidating statements of earnings and
cash flow of the Borrower and its Restricted Subsidiaries and, to the
extent available, unaudited consolidated and consolidating statements of
earnings and cash flow of the Borrower and its Subsidiaries, in each case
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter,
certified by the chief financial Authorized Officer of the Borrower as
fairly presenting in all material respects, in accordance with GAAP
(subject to year-end audit adjustments), the financial position and
results of operations of the Borrower and its Subsidiaries covered thereby
as of the date thereof;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of the Borrower, a copy of the annual audited
financial statements for such Fiscal Year for the Borrower and its
Restricted Subsidiaries, including therein consolidated and
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consolidating balance sheets of the Borrower and its Restricted
Subsidiaries as of the end of such Fiscal Year and consolidated and
consolidating statements of earnings and cash flow of the Borrower and its
Restricted Subsidiaries for such Fiscal Year, in each case as audited
(without any Impermissible Qualification) by Deloitte & Touche LLC or
other nationally recognized independent public accountants, together in
any event with a certificate of such accounting firm stating that in the
course of its regular audit of the business of the Borrower and its
Restricted Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained
no knowledge of any Default or Event of Default relating to clause (a),
(b) or (c) of Section 7.2.4 that has occurred and is continuing or, if in
the opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof;
(c) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower and within 120 days after the end of the Fiscal Year of the
Borrower, a Compliance Certificate, executed by the chief executive,
financial or accounting Authorized Officer of the Borrower, showing (in
reasonable detail, including with respect to appropriate calculations and
computations) compliance with the financial covenants set forth in Article
VII;
(d) promptly after any Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of the occurrence of a
Default or Event of Default (including any "Event of Default" as defined
in the Senior Subordinated Indenture), a statement of the chief executive,
financial or accounting Authorized Officer of the Borrower setting forth
details of such Default or Event of Default and the action which the
Borrower has taken and proposes to take with respect thereto;
(e) promptly after any Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of (x) the occurrence of any
material adverse
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development with respect to any litigation, action, proceeding or labor
controversy, or (y) the commencement of any litigation, action, proceeding
or labor controversy, in each case (in the case of either clause (x) or
(y) above) to the extent the same, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, notice thereof;
(f) promptly after any receipt of any notice of acceleration,
redemption or purchase demands or other similar notices provided by the
trustee for the Senior Subordinated Notes, notice thereof and copies of
all documentation relating thereto;
(g) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) of Section 7.1.1, financial statements
prepared on a pro forma basis assuming each Acquisition consummated during
the Test Period relating to such financial statements referred to in such
clauses (a) and (b) had been consummated on the first day of such Test
Period, together with a Compliance Certificate executed by the chief
executive, financial or accounting Authorized Officer of the Borrower;
(h) promptly upon filing thereof, copies of any reports filed on
Forms 10-K, 10-Q, and 8-K, effective registration statements filed on
Forms X-0, X-0, X-0 and S-4, and any proxy statements, as well as any
substitute or similar documents to substantially the same effect as the
foregoing, including, to the extent requested by the Administrative Agent,
the schedules and exhibits thereto, in such each case as filed with the
SEC by the Borrower or any of its Restricted Subsidiaries (other than
immaterial amendments to any such registration statement);
(i) promptly after transmission thereof, copies of any notices of
reports that the Borrower or any of its Subsidiaries shall send to the
holders of any publicly issued debt of the Borrower and/or any of its
Subsidiaries (including the Senior Subordinated Notes) in their capacity
as such holders (in each case to the extent not theretofore delivered to
the Lenders pursuant to this Agreement);
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(j) promptly after a Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of the occurrence of any
ERISA Event (but in no event more than 10 days after a Responsible Officer
of the Borrower obtains knowledge of such ERISA Event), notice thereof
together with a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Borrower or any ERISA Affiliate with respect
to such event;
(k) promptly when available and in any event within 60 Business Days
after the last day of each Fiscal Year of the Borrower (commencing after
the Effective Date), a budget for the then current Fiscal Year of the
Borrower as customarily prepared by the management of the Borrower for its
internal use, which budget shall be prepared on a Fiscal Quarter basis and
shall set forth the principal assumptions on which such budget is based;
(l) promptly after obtaining knowledge of any one or more of the
following environmental matters, unless such environmental matters would
not, individually or when aggregated with all other such matters, be
reasonably expected to result in a Material Adverse Effect, written notice
of:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Estate (as defined
below);
(ii) any condition or occurrence on any Real Estate that (x)
results in noncompliance by the Borrower or any of its Subsidiaries
with any applicable Environmental Law or (y) could reasonably be
anticipated to form the basis of an Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Estate;
(iii) any condition or occurrence on any Real Estate that
could reasonably be anticipated to cause such Real Estate to be
subject to any restrictions on
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the ownership, occupancy, use or transferability of such Real Estate
under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's response thereto. The term "Real Estate" shall mean
land, buildings and improvements owned or leased by the Borrower or any of
its Subsidiaries, but excluding all operating fixtures and equipment,
whether or not incorporated into improvements; and
(m) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Agent, or the Required Lenders through the Administrative Agent, may from
time to time reasonably request in writing.
SECTION 7.1.2. Preservation of Corporate Existence, etc. The Borrower
will, and will cause each of its Restricted Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence under the laws of its state or jurisdiction of incorporation
(provided that the Borrower and its Restricted Subsidiaries may consummate
any transaction permitted under Section 7.2.7), except, in the case of any
such Restricted Subsidiary, to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and
(b) preserve and maintain in full force and effect its good standing
under the laws of its state or jurisdiction of incorporation and all
material governmental rights, privileges, qualification, permits, licenses
and franchises necessary in the normal conduct of its business except in
each case to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
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SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Restricted Subsidiaries to, ensure that its properties and
equipment used or useful in its business, in whomsoever's possession they may be
to the extent that it is within the Borrower's or such Restricted Subsidiary's
control to cause same, are kept in good repair, working order and condition,
normal wear and tear excepted, and that from time to time there are made in such
properties and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and
in the manner customary for companies in similar businesses and consistent with
third-party leases, except in each case to the extent the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.4. Payment of Taxes. The Borrower will, and will cause each of
its Subsidiaries to, pay and discharge all material taxes, assessments and
governmental charges or levies upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful material claims that, if unpaid, could reasonably
be expected to become a material Lien upon any properties of the Borrower or any
of its Restricted Subsidiaries; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required hereunder to pay any such tax,
assessment, charge, levy or claim that is being contested in good faith if it
has maintained adequate reserves (in the good faith judgment of the management
of the Borrower or such Subsidiary) with respect thereto in accordance with
GAAP.
SECTION 7.1.5. Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to comply, in all material respects, with all
applicable statutes, regulations and other Requirements of Law (including
Environmental Laws) having jurisdiction over it or its business, except such as
may be contested in good faith or as to which a bona fide dispute may exist or
except to the extent that the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
SECTION 7.1.6. Insurance. The Borrower shall, and shall cause each of its
Restricted Subsidiaries to, at all times maintain in full force and effect, with
insurance companies which
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the Borrower believes (in the good faith judgment of the management of the
Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance with respect to its properties and
business (including business interruption and hurricane insurance) against such
casualties and contingencies and of such types and in such amounts, and with
such deductibles, retentions, self-insured amounts and reinsurance provisions,
as are customarily maintained by companies engaged in the same or similar
businesses in the same general area and will, upon request of any of the
Administrative Agent, furnish to each Lender information presented in reasonable
detail as to the insurance maintained by the Borrower and its Restricted
Subsidiaries.
SECTION 7.1.7. Inspection Of Property and Books and Records. The Borrower
will, and will cause each of its Restricted Subsidiaries to, permit officers and
designated representatives of the Agents or the Required Lenders, at reasonable
times and intervals, to visit and inspect any of its properties or its assets,
to discuss its financial matters with its officers and independent public
accountant and to examine (and, at the expense of the Borrower, photocopy
extracts from) any of its books or other corporate records. The Borrower shall
pay any fees of such independent public accountant incurred in connection with
such Agent's or any Lender's exercise of its rights pursuant to this Section.
SECTION 7.1.8. Guaranty by each of The Fairways Group, L.P. and its
Subsidiaries. The Administrative Agent shall have received, no later than August
31, 1998, with counterparts for each Lender, supplements to the Guaranty duly
executed and delivered by each of The Fairways Group, L.P. and its Subsidiaries
for the purposes of The Fairways Group, L.P. and such Subsidiaries becoming
guarantors thereunder.
SECTION 7.1.9. Future Subsidiaries. Upon any Person becoming, after the
Effective Date, a Subsidiary of the Borrower (other than any Unrestricted
Subsidiary), including any Person that was a Restricted Subsidiary, but not a
Material Restricted Subsidiary, but which becomes a Material Restricted
Subsidiary through internal growth or otherwise, or upon the Borrower acquiring
additional Capital Stock of any existing Restricted
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Subsidiary, the Capital Stock of which is then pledged under the Pledge
Agreement, the Borrower shall notify the Agents of such acquisition, and, unless
otherwise agreed to among the Borrower, the Agents and the Required Lenders, and
subject to the provisions of clauses (g)(iii) and (k)(ii) of Section 7.2.2 and
clause(i)(ii) of Section 7.2.5,
(a) such Person shall, if it is a Domestic Subsidiary and not
theretofore a party to the Guaranty, execute and deliver to the
Administrative Agent a supplement to the Guaranty for the purposes of
becoming a guarantor thereunder; and
(b) the Borrower shall, if such Person is a direct Subsidiary of the
Borrower, pursuant to the Pledge Agreement, pledge to the Administrative
Agent all of the outstanding shares of Capital Stock of such Subsidiary
owned directly by it (provided that, in the event such Subsidiary is a
Foreign Subsidiary, the Borrower shall not be required to pledge more than
65% of the outstanding shares of the Capital Stock of such Subsidiary),
along with undated stock powers for such certificates, executed in blank
(or, if any such shares of capital stock are uncertificated, confirmation
and evidence satisfactory to the Agents that the security interest in such
uncertificated securities has been transferred to and perfected by the
Administrative Agent, for the benefit of the Lenders, the Agents and the
Issuer, in accordance with Section 8-313 and Section 8-321 of the U.C.C.
or any other similar law which may be applicable).
SECTION 7.1.10. Use of Proceeds. The Borrower shall apply the proceeds of
the Credit Extensions
(a) for working capital and general corporate purposes of the
Borrower and its Restricted Subsidiaries, including Permitted Acquisitions
by such Persons; and
(b) to repay the Indebtedness identified in Item 7.2.2(b)
("Indebtedness to be Paid") of the Disclosure Schedule.
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SECTION 7.1.11. Transactions with Affiliates. The Borrower shall, and
shall cause each of its Restricted Subsidiaries to, conduct all transactions
with any of its Affiliates (other than the Borrower and its Restricted
Subsidiaries) upon terms that are substantially as favorable to the Borrower or
such Restricted Subsidiary as it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Borrower or such Restricted
Subsidiary; provided that the foregoing restrictions shall not apply to (a) the
payment of customary annual fees to KKR and its Affiliates for management,
consulting and financial services rendered to the Borrower and its Restricted
Subsidiaries, and customary investment banking fees paid to KKR and its
Affiliates for services rendered to the Borrower or its Restricted Subsidiaries
in connection with divestitures, acquisitions, financings and other
transactions, (b) customary fees paid to members of the Board of Directors of
the Borrower and its Restricted Subsidiaries and (c) the performance of the
management agreements entered into with KSL identified in Item 7.1.11
("Management Agreements with KSL") of the Disclosure Schedule.
SECTION 7.1.12. Business Activities. The Borrower will, and will cause
each of its Restricted Subsidiaries to, engage primarily in the business of
owning, operating and developing country club, resort and spa properties and
assets and hospitality services activities related thereto and such other
activities as are reasonably related, incidental or substantially similar
thereto.
SECTION 7.1.13. End of Fiscal Year. The Borrower will, for financial
reporting purposes, cause each of its, and each of its Domestic Subsidiaries',
fiscal years to end on October 31 of each year (the "Fiscal Year End");
provided, however, that the Borrower may, upon prior written notice to the
Agents, change the definition of Fiscal Year End set forth above to any other
date reasonably acceptable to the Agents, in which case the Borrower and the
Agents will, and are hereby authorized by the Lenders to, make any adjustments
to this Agreement that are necessary in order to reflect such change in
financial reporting.
SECTION 7.2. Negative Covenants. The Borrower agrees with each Agent, the
Issuer and each Lender that, until all
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Commitments have terminated, all Letters of Credit have terminated or expired
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Modification of Certain Agreements. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, consent to or permit
or suffer to exist any amendment, supplement or other modification of, the
Senior Subordinated Notes or the Senior Subordinated Indenture or any document
or instrument evidencing or applicable to the Subordinated Debt issued
thereunder in a manner materially adverse to the Lenders.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations (including Hedging Obligations in respect of such Credit
Extensions);
(b) until the date of the initial Credit Extension, Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) unsecured Indebtedness incurred in the ordinary course of
business of the Borrower and its Restricted Subsidiaries (consisting of
open accounts extended by suppliers on normal trade terms in connection
with purchases of goods and services and Indebtedness in respect of
performance, surety or appeal bonds provided in the ordinary course of
business, but excluding Indebtedness incurred through the borrowing of
money or Contingent Obligations in respect thereof);
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(e) Indebtedness in respect of Capitalized Lease Liabilities;
provided, that the aggregate amount of all Indebtedness outstanding
pursuant to this clause at the time any of the same is created, assumed or
incurred (together with the principal amount of all other Indebtedness
permitted under this clause (e)) shall not at any time exceed $125,000,000
at such time after giving effect thereto;
(f) Indebtedness between the Borrower and its Restricted
Subsidiaries and Indebtedness between Restricted Subsidiaries;
(g) Indebtedness of a Person existing at the time such Person became
a Restricted Subsidiary of the Borrower to the extent such Indebtedness
constitutes mortgage financing or other real property financing or, when
incurred by such Person, would have constituted Indebtedness of the type
described in clause (i) below, in each case after the Closing Date as the
result of a Permitted Acquisition, provided that (i) such Indebtedness
existed at the time such Person became a Restricted Subsidiary or at the
time such assets were acquired and, in each case, was not created in
anticipation thereof, (ii) such Indebtedness is not guaranteed in any
respect by the Borrower or any Restricted Subsidiary (other than any such
Person that so becomes a Restricted Subsidiary), (iii) (A) the Borrower
pledges the Capital Stock of such Person to the Administrative Agent to
the extent required under Section 7.1.9, (B) such Person executes a
supplement to the Guaranty to the extent required under Section 7.1.9 and
(C) if any such Indebtedness is secured, (1) the Guaranty referred to in
the preceding subclause (B) is equally and ratably secured or (2) in the
case of assets acquired by the Borrower or any Restricted Subsidiary, the
Borrower's obligations hereunder or such Restricted Subsidiary's Guaranty,
as the case may be, are equally and ratably secured, provided that the
requirements of this subclause (iii) shall not apply to a portion thereof
in an aggregate amount at any time outstanding of up to (and including),
but not in excess of, $25,000,000 of the aggregate of (1) all such
Indebtedness described above in this clause (g) and (2) all Indebtedness
as to which the
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proviso to clause (k)(ii) of this Section 7.2.2 then applies, and (iv) the
aggregate amount of all such Indebtedness described above in this clause
(g) together with the Increased Commitment Amount and all Indebtedness
incurred under clause (k) below of this Section 7.2.2, when taken
together, may not exceed $200,000,000 in the aggregate at any time
outstanding;
(h) unsecured Subordinated Debt of the Borrower evidenced by the
Senior Subordinated Notes in an aggregate principal amount not to exceed
$125,000,000;
(i) Indebtedness in an aggregate outstanding amount not to exceed
$25,000,000 at any time incurred within 270 days of the acquisition,
construction or improvement of fixed or capital assets to finance the
acquisition, construction or improvement of such fixed or capital assets
or otherwise incurred in respect of capital expenditures of the Borrower
and its Restricted Subsidiaries to the extent (but only to the extent)
such Indebtedness is secured solely by (and recourse in respect of such
Indebtedness is limited to) such fixed or capital assets and is
non-recourse to the Borrower and each of its Restricted Subsidiaries;
(j) Indebtedness in respect of Hedging Obligations incurred in the
ordinary course of business and not for speculative purposes (as
determined in good faith by the Borrower);
(k) Indebtedness of the Borrower or any Restricted Subsidiary,
provided, that (x) if such Indebtedness is incurred to finance a Permitted
Acquisition, (i) such Indebtedness is not guaranteed in any respect by any
Restricted Subsidiary (other than any Person acquired (the "acquired
Person") as a result of such Permitted Acquisition or the Restricted
Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness
of any Restricted Subsidiary, by the Borrower and (ii) (A) the Borrower
pledges the Capital Stock of such acquired Person to the Administrative
Agent to the extent required under Section 7.1.9, (B) such acquired Person
executes a supplement to the Guaranty to the extent required under Section
7.1.9 and
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(C) if a guaranty by such acquired Person of any such Indebtedness is
secured by assets of such acquired Person, the Guaranty referred to in the
preceding subclause (B) is equally and ratably secured, provided that the
requirements of this subclause (ii) shall not apply to a portion thereof
in an aggregate amount at any time outstanding of up to (and including),
but not in excess of, $25,000,000 of the aggregate of (1) all such
Indebtedness described above in this clause (k) and (2) all Indebtedness
as to which the proviso to clause (g)(iii) of this Section 7.2.2 then
applies, and (y) the aggregate amount of all such Indebtedness described
above in this clause (k) together with the Increased Commitment Amount and
all Indebtedness assumed or permitted to exist under clause (g) of this
Section 7.2.2, when taken together, may not exceed $200,000,000 in the
aggregate at any time outstanding; and
(l) any refinancing, refunding, renewal or extension of any
Indebtedness permitted under clauses (c) through (k) above; provided that
(i) the principal amount thereof is not increased above the principal
amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension (except to the extent otherwise permitted
under this Section 7.2.2) and (ii) the direct and contingent obligors with
respect to such Indebtedness are not changed unless permitted under the
applicable provisions hereof.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document or any Rate Protection Agreement;
(b) until the date of the initial Credit Extension, Liens securing
payment of Indebtedness of the type permitted and described in clause (b)
of Section 7.2.2;
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(c) Liens existing as of the Effective Date securing Indebtedness of
the type permitted and described in clause (c) of Section 7.2.2;
(d) Liens securing
(i) payment of foreign currency exchange or rate swap and
similar agreements referred to in clause (a) of Section 7.2.2, in
each case to the extent the counterparty to any such agreement is
(or at the time such agreement was entered into, was) a Lender or an
Affiliate of a Lender; and
(ii) Indebtedness of the type permitted and described in
clause (e) of Section 7.2.2 (and securing only the assets that are
the subject of such Capitalized Lease Liabilities);
and renewals, extensions and refinancing of such Indebtedness; provided,
that the Liens permitted by this clause with respect to clause (e) of
Section 7.2.2 shall only cover the same assets (or substitutions or
replacements of the same general type) which originally secured the
Indebtedness renewed, extended or refinanced pursuant to such clause;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
to the extent payment is not required pursuant to Section 7.1.4;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords and other similar Liens imposed by law incurred in the ordinary
course of business, in each case so long as such Liens do not individually
or in the aggregate have a Material Adverse Effect;
(g) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory and
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regulatory obligations, bids, leases and contracts or other similar
obligations (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds or
performance or return-of-money bonds;
(h) Liens consisting of judgement or judicial attachment liens in
circumstances not constituting an Event of Default under Section 8.1.6;
(i) easements, rights-of-way, municipal and zoning ordinances or
similar restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect
with the ordinary conduct of the business of the Borrower or its
Restricted Subsidiaries;
(j) Liens on the property of, or securing Indebtedness to the extent
permitted by clause (g) of Section 7.2.2 of, any Person which becomes a
Restricted Subsidiary after the date hereof; provided that such Liens
exist at the time such Person becomes a Restricted Subsidiary and are not
created in anticipation thereof and such Liens attach only to a specific
asset or type of asset of such Person and not assets of such Person
generally;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banks' liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution, provided that such deposit account is not
a cash collateral account;
(l) any interest or title of a lessor secured by a lessor's interest
under any lease permitted by this Agreement, or any leases or subleases
granted to others not interfering in any material respect with the
business of the Borrower or its Restricted Subsidiary to which the
property subject to such lease or sublease relates;
(m) Liens placed upon property, plant or equipment used in the
ordinary course of business of the Borrower or
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any of its Restricted Subsidiaries in connection with the acquisition
thereof by the Borrower or any such Restricted Subsidiary to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof (provided that (i) the Lien encumbering the property, plant or
equipment so acquired does not encumber any other asset of the Borrower or
any such Restricted Subsidiary and (ii) the Indebtedness secured thereby
is permitted by clause (k) of Section 7.2.2 and such acquisition was
otherwise permitted by this Agreement);
(n) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary, or existing on assets acquired, pursuant to a
Permitted Acquisition under clause (i) of Section 7.2.5 to the extent the
Liens on such assets secure Indebtedness permitted by clause (g) of
Section 7.2.2, provided that such Liens attach at all times only to the
same assets that such Liens attached to, and secure only the same
Indebtedness that such Liens secured, immediately prior to such Permitted
Acquisition;
(o) Liens placed upon the Capital Stock or assets of any Restricted
Subsidiary acquired pursuant to a Permitted Acquisition under clause (i)
of Section 7.2.5 to the extent such Liens secure Indebtedness incurred
pursuant to clause (k) of Section 7.2.2 to finance the Acquisition of such
Restricted Subsidiary by the Borrower or any of its other Restricted
Subsidiaries;
(p) Liens securing additional Indebtedness in an aggregate
outstanding amount not to exceed $5,000,000 at any time; and
(q) the replacement, extension or renewal of any Lien permitted by
clauses (c) through (p) above upon or in the same assets theretofore
subject to such Lien (or substitution or replacement assets of the same
general type) or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor except to the
extent otherwise permitted under this Agreement) of the Indebtedness
secured thereby.
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SECTION 7.2.4. Financial Condition and Operations. The Borrower will not
permit to occur any of the events set forth below.
(a) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Interest Coverage
Period Ratio
------ -----------------
04/30/1997 through
10/31/1997 1.50:1
01/31/1998 through
10/31/1998 1.75:1
01/31/1999 through
10/31/1999 2.00:1
01/31/2000 through
10/31/2000 2.25:1
01/31/2001 through
the Stated Maturity Date
with respect to Term B Loans 2.50:1.
(b) Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter during any
Fiscal Year (commencing with the Fiscal Quarter ending October 31, 1997)
to be less than 1.05:1.
(c) Maximum Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the end of any Fiscal Quarter ending on or about any
date set forth below or occurring during any period set forth below to be
greater than the ratio set forth opposite such date or such period, as
applicable:
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Maximum Leverage
Date/Period Ratio
----------- ----------------
10/31/1997 6.75:1
01/31/1998 through 07/31/1998 6.50:1
10/31/1998 6.25:1
01/31/1999 through 10/31/1999 6.00:1
01/31/2000 through 5.50:1
10/31/2001
01/31/2002 through 4.50:1.
the Stated Maturity Date
with respect to Term B Loans
SECTION 7.2.5. Investments. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments to the extent permitted as
Indebtedness pursuant to Section 7.2.2;
(d) without duplication, Capital Expenditures;
(e) without duplication, Investments permitted by Section 7.2.6;
(f) Investments by way of contributions to capital or purchases of
equity by the Borrower in any of its Restricted Subsidiaries or by such
Restricted Subsidiary in any of its Restricted Subsidiaries;
(g) Investments constituting (i) accounts receivable arising, (ii)
trade debt granted, or (iii) deposits made in
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connection with the purchase price of goods or services, in each case in
the ordinary course of business;
(h) Investments constituting loans and advances to officers,
directors and employees of the Borrower or any of the Restricted
Subsidiaries (i) to finance the purchase of Capital Stock of the Borrower
and (ii) for additional purposes not contemplated by clause (i) above, in
an aggregate principal amount at any time outstanding with respect to this
clause (ii) not exceeding $5,000,000;
(i) Investments by the Borrower or any Restricted Subsidiary (other
than any Investment in an Unrestricted Subsidiary) constituting an
Acquisition (any such Acquisition permitted pursuant to this clause (i), a
"Permitted Acquisition"), so long as (i) such Acquisition and all
transactions related thereto are consummated in accordance with applicable
law, (ii) in the case of an Acquisition of Capital Stock or other equity
interest by the Borrower or a Restricted Subsidiary, (A) such Acquisition
results in the issuer of such Capital Stock or other equity interest
becoming a Restricted Subsidiary, (B) the Borrower pledges the Capital
Stock of such Person to the Administrative Agent to the extent required
under Section 7.1.9 and (C) such Person executes a supplement to the
Guaranty to the extent required under Section 7.1.9, provided that the
requirements of subclauses (B) and (C) of this subclause (ii) shall not
apply to an aggregate amount at any time outstanding of up to (and
including), but not in excess of, $25,000,000 of Indebtedness permitted
under clauses (g) and (k) of Section 7.2.2 to be incurred in connection
with such Acquisition, (iii) no Capital Stock or other equity interest or
assets acquired in connection with such Acquisition shall be subject to
any Lien (other than Liens permitted by Section 7.2.3), (iv) neither the
Borrower nor any other Restricted Subsidiary shall assume or incur,
directly or indirectly, any Indebtedness in connection with such
Acquisition (other than Indebtedness otherwise permitted by Section
7.2.2), (v) after giving effect to such Acquisition, no Default shall have
occurred and be continuing and (vi) the Borrower shall have delivered to
the Administrative Agent prior to the consummation of such
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Acquisition (A) financial statements or reconciliations prepared on a pro
forma basis for the period of four consecutive Fiscal Quarters ending with
the Fiscal Quarter then last ended for which financial statements and the
Compliance Certificate relating thereto have been delivered to the
Administrative Agent pursuant to Section 7.1.1 (assuming, for purposes of
such pro forma calculation, that such Acquisition had been consummated on
the first day of such period) and (B) a certificate of the Borrower
executed by its chief financial Authorized Officer demonstrating that the
financial results reflected in such financial statements would comply with
the requirements of Section 7.2.4 for the Fiscal Quarter in which such
Investment is to be made (provided, that for purposes of this clause
(i)(vi), and notwithstanding anything in clause (c) of Section 7.2.4 to
the contrary, with respect to Investments made in Fiscal Quarters ended
prior to October 31, 1997, the requirements of clause (c) of Section 7.2.4
shall apply and be deemed to specify a "Maximum Leverage Ratio" not to
exceed 6.75:1); and
(j) additional Investments by the Borrower or its Restricted
Subsidiaries (including in Unrestricted Subsidiaries); provided, that at
any time that the Leverage Ratio as of the last day of the most recently
ended Fiscal Quarter is greater than 3.5:1.0, additional Investments may
not be made pursuant to this clause (j) if, after giving effect thereto,
the aggregate amount of all Investments at such time would exceed the sum
of (i) $50,000,000 and (ii) the Available Amount at such time (to the
extent not utilized prior to such time); and
(k) any Investment constituting the Corporate Sale Transaction;
provided, however, that
(l) any Investment which when made complies with the requirements of
clause (a), (b) or (c) of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such Investment
if made thereafter would not comply with such requirements; and
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(m) no Investment otherwise permitted by clause (i), (j) or (k)
shall be permitted to be made if any Event of Default or payment Default
has occurred and is continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. The Borrower shall not declare or
make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class of its
Capital Stock, purchase, redeem or otherwise acquire for value any shares of its
Capital Stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding, or pay, prepay, purchase, redeem or defease principal of
the Senior Subordinated Notes or make any payments pursuant to any tax sharing
arrangements or agreements, and the Borrower shall not permit any Restricted
Subsidiary to purchase, redeem or otherwise acquire for value any shares of any
class of Capital Stock of the Borrower, now or hereafter outstanding (or any
warrants, rights or options to acquire such shares), and the Borrower shall not
permit any of its Restricted Subsidiaries to pay, prepay, purchase, redeem or
defease principal of the Senior Subordinated Notes or to make any payments
pursuant to any tax sharing arrangement or agreement, except that, so long as
(except in the case of clause (e) below) before and after giving effect to any
such payment no Default shall have occurred, the Borrower may:
(a) declare and make dividends or other distributions payable solely
in shares of its Capital Stock;
(b) purchase, redeem or otherwise acquire shares of common stock of
the Borrower or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issuance of new shares
of common stock of the Borrower;
(c) redeem or exchange in whole or in part any Capital Stock of the
Borrower for another class of Capital Stock or rights to acquire such
other class of Capital Stock of the Borrower, provided that such other
class of Capital Stock contains terms and provisions (taken as a whole) at
least as advantageous to the Lenders as those contained in the Capital
Stock redeemed or exchanged thereby;
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(d) repurchase shares of its Capital Stock (together with options or
warrants in respect of any thereof) held by the officers, directors and
employees of the Borrower, so long as such repurchase is pursuant to, and
in accordance with the terms of, management and/or employee stock plans,
stock subscription agreements or shareholder agreements;
(e) (i) pay dividends to KSL in amounts necessary to pay
administrative, legal, accounting and other fees, costs and expenses
directly related to the ownership of the Borrower or the conduct of its
operations and (ii) make, and may permit its Restricted Subsidiaries to
make, payments to (x) the Borrower or any Restricted Subsidiary pursuant
to a tax sharing agreement and (y) KSL pursuant to a tax sharing agreement
in respect of the actual consolidated or combined tax liability of KSL and
its Subsidiaries to the extent such tax payments are attributable to the
tax liability of the Borrower and its Subsidiaries determined as if the
Borrower and its Subsidiaries were an affiliated group of companies filing
a consolidated or, as applicable, combined return, provided that, the
Borrower and its Subsidiaries shall not make any portion of any such tax
payment to the extent corresponding to any portion of such tax liability
of the Borrower and its Subsidiaries attributable to any tax liability of
an Unrestricted Subsidiary (determined as if Unrestricted Subsidiaries
were to file returns on a separate reporting basis), unless the Borrower
or its Restricted Subsidiaries shall have received contribution to the
extent of each such Unrestricted Subsidiary's liability (as adjusted in
good faith in a manner not materially adverse to the Lenders) from the
Unrestricted Subsidiaries;
(f) make a dividend or distribution constituting the Corporate Sale
Transaction;
(g) redeem, defease or otherwise prepay or retire the Senior
Subordinated Notes in an aggregate amount not to exceed at any time the
Available Amount at such time (to the extent not utilized prior to such
time);
(h) at any time after the Closing Date, pay cash dividends not
otherwise permitted hereunder so long as the
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aggregate amount so paid under this clause (h) during the term of this
Agreement does not exceed an amount equal to the sum of (i) $15,000,000
and (ii) 50% of Consolidated Net Income for the period (taken as one
accounting period) from the Closing Date through the last day of the most
recently ended Fiscal Quarter; and
(i) make dividends or distributions consisting of one or more
Specified Real Properties to the extent (and only to the extent) that
immediately prior to any such dividend or distribution of any Specified
Real Property, the use of such Specified Real Property shall be
substantially similar to the use of such Specified Real Property by the
Borrower and/or its Restricted Subsidiaries on the Closing Date.
SECTION 7.2.7. Consolidations and Mergers; Sales of Assets. The Borrower
shall not, and shall not suffer or permit any of its Restricted Subsidiaries to,
merge, consolidate or otherwise combine or liquidate with or into, or enter into
or consummate any Disposition (other than any Disposition resulting from a
casualty or condemnation), whether in one transaction or in a series of
transactions to or in favor of, any Person, except:
(a) (i) any Restricted Subsidiary may merge or otherwise consolidate
with the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) and (ii) any Restricted Subsidiary may merge or
otherwise consolidate with any other Restricted Subsidiary;
(b) any Restricted Subsidiary may sell or otherwise transfer its
assets (upon voluntary liquidation or otherwise) to the Borrower and the
Borrower or any Restricted Subsidiary may sell or otherwise transfer its
assets (in the case of any such Restricted Subsidiary, upon voluntary
liquidation or otherwise) to any Restricted Subsidiary;
(c) the Borrower or any Restricted Subsidiary may consummate the
Corporate Sale Transaction; and
(d) the Borrower or any Restricted Subsidiary may consummate one or
more Dispositions (in addition to any
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thereof described in any other provision of this Section 7.2.7), provided
that (i) the Borrower complies with the requirements of clause (e) of
Section 3.1.1, (ii) such Disposition is made for fair value (as determined
in good faith by the Borrower) and (iii) the aggregate consideration
received for all assets disposed of in Dispositions from and after the
Closing Date pursuant to this clause (d) shall not exceed $125,000,000.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in
the payment or prepayment when due of
(a) any principal of any Loan; or
(b) of any interest on any Loan, any Reimbursement Obligation, any
fee described in Article III or of any other amount payable hereunder or
under any other Loan Document and such default shall continue unremedied
for a period of five days.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to any Agent, the Issuer or
any Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article
V), is or shall be incorrect when made or deemed to have been made in any
material respect.
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SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
Borrower shall default in the due performance and observance of any of its
obligations under clause (d) or (f) of Section 7.1.1, Section 7.1.8 or Section
7.2 or Section 8 of the Pledge Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. The
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after written notice thereof shall have been given to the Borrower or such
other Obligor, as applicable, by the Administrative Agent or the Required
Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Restricted
Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $10,000,000, or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness (subject to any
applicable grace period) if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause or declare such
Indebtedness to become due and payable or to require such Indebtedness to be
prepaid, redeemed, purchased or defeased, or to cause an offer to purchase or
defease such Indebtedness to be required to be made, prior to its expressed
maturity.
SECTION 8.1.6. Judgments. Any judgment, order, decree or arbitration award
for the payment of money in excess of $10,000,000 (to the extent not fully
covered by insurance (less any applicable deductible) or indemnification and as
to which the insurer or the indemnifying party, as the case may be, has not
disputed in writing its responsibility to cover such judgment, order, decree or
arbitration award) shall be rendered against the Borrower or any of its
Restricted Subsidiaries and the same shall
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not have been satisfied or vacated or discharged or stayed or bonded pending
appeal within 60 days after the entry thereof.
SECTION 8.1.7. ERISA. An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan.
SECTION 8.1.8. Control of the Borrower. Any Change of Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Material Restricted Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness generally to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial
part of the property of any thereof, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for a substantial part of the property of
any thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect thereof, and, if any such case or
proceeding is not commenced by the Borrower or any such Subsidiary, such
case or proceeding shall be consented to or acquiesced in by the Borrower
or such Subsidiary, as the case may be, or shall result in the entry of an
order for relief or shall remain for 60 days undismissed; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
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SECTION 8.1.10. Impairment of Security, etc. The Pledge Agreement or the
Guaranty, in whole or in material part, or any Lien granted under the Pledge
Agreement, shall (except in accordance with its terms and except as a result of
acts or omissions of any Agent or Lender) terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation of any Obligor
party thereto; the Borrower, any other Obligor or any other party shall,
directly or indirectly, deny or disaffirm in writing such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any
Loan Document, any Lien securing any Obligation shall, in whole or in part,
cease to be a perfected first priority Lien.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable, without notice or demand and the
Borrower shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to all Letter of Credit
Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall terminate and
the Borrower shall automatically and immediately be obligated to deposit with
the Administrative
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Agent cash collateral in an amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. (a) Each Lender hereby appoints (i) DLJ as one of
its Co-Syndication Agents and as its Documentation Agent, (ii) Scotiabank as one
of its Co-Syndication Agents and as its Administrative Agent and (iii)
BancAmerica as its Syndication Agent, in each case under and for purposes of
this Agreement, the Notes and each other Loan Document. Each Lender authorizes
each such Agent to act on behalf of such Lender under this Agreement, the Notes
and each other Loan Document and, in the absence of other written instructions
from the Required Lenders received from time to time by any particular Agent
(with respect to which each Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel in order
to avoid contravention of applicable law), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of such Agent by the
terms hereof or thereof, together with such powers as may be reasonably
incidental thereto. Each Lender hereby indemnifies (which indemnity shall
survive any termination of this Agreement) each of the Agents and their
respective directors, officers, employees or agents, ratably in accordance with
each such Lender's respective Term Loans outstanding and Commitments (or, if no
Term Loans or Commitments are at the time outstanding or in effect, then ratably
in accordance with the principal amount of Term Loans held by such Lender, and
each such Lender's respective Commitments as in effect in each case on the date
of the termination of this Agreement), from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, such Agent, in any way relating to or arising out of this Agreement,
the Notes and any other Loan Document, including reasonable attorneys' fees, and
as to which the same is not reimbursed by the Borrower; provided, however, that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages,
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claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the gross
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. No Agent shall be required to take any action hereunder,
under the Notes or under any other Loan Document, or to prosecute or defend any
suit in respect of this Agreement, the Notes or any other Loan Document, unless
it is indemnified hereunder to its satisfaction. If any indemnity in favor of
any Agent shall be or become, in such Agent's determination inadequate, such
Agent may call for additional indemnification from the Lenders and cease to do
the acts indemnified against hereunder until such additional indemnity is given.
(b) Each Lender with a Revolving Loan Commitment hereby irrevocably
appoints the Issuer to act on behalf of such Lenders with respect to any Letters
of Credit issued by the Issuer and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Required Lenders to act for such Issuer with respect thereto; provided,
however, that the Issuer shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Administrative Agent", as used in this Article IX, included the Issuer
with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuer.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York City time, on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender will make such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative
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Agent, such Lender and the Borrower severally agree to repay the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount
available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing, in the case of the Borrower, and, in the case of a
Lender, at the Federal Funds Rate for the first two Business Days after which
such amount has not been repaid, and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents nor any of their respective
directors, officers, employees or agents shall be liable to any Lender or the
Issuer for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrower of its obligations hereunder or under
any other Loan Document. Any such inquiry which may be made by any such Agent
shall not obligate such Person to make any further inquiry or to take any
action. Each of the Agents shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement or
writing which it believes to be genuine and to have been presented by a proper
Person.
SECTION 9.4. Successor. Any Agent may resign as such at any time upon at
least 30 days' prior notice to the Borrower and all Lenders. If any Agent at any
time shall resign, the Required Lenders may appoint another Lender reasonably
acceptable to the Borrower as a successor to such Agent which shall thereupon
become an Agent hereunder in such capacity as the retiring Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment,
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within 30 days after the retiring Agent's giving notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be one of the Lenders or a commercial banking institution organized under
the laws of the U.S. (or any State thereof) or a U.S. branch or agency of a
commercial banking institution, and having (x) a combined capital and surplus of
at least $250,000,000 and (y) a credit rating of AA or better by Xxxxx'x or a
comparable rating by S&P; provided, however, that if, after expending all
reasonable commercial efforts, such retiring Agent is unable to find a
commercial banking institution which is willing to accept such appointment and
which meets the qualifications set forth in clause (y) above, such retiring
Agent, shall be permitted to appoint as its successor from all available
commercial banking institutions willing to accept such appointment such
institution having the highest credit rating of all such available and willing
institutions. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and assignment as such successor Agent
may reasonably request, and shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement; and
(b) Sections 10.3 and 10.4 shall continue to inure to its benefit.
SECTION 9.5. Loans by Agents. Each of the Agents shall have the same
rights and powers with respect to (x) the Credit Extensions made by it or any of
its Affiliates, and (y) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not an Agent hereunder.
Each of the Agents and their respective Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any Subsidiary or Affiliate of the Borrower as if it were not an Agent
hereunder.
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SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each of the Agents and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this Agreement,
the other Loan Documents (the terms and provisions of which being satisfactory
to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will, independently of each
of the Agents and each other Lender, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this Agreement
or any other Loan Document.
SECTION 9.7. Copies, etc. Each Agent shall give prompt notice to each
Lender and each other Agent of each notice or request required or permitted to
be given to such Agent by the Borrower pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders by the Borrower). Each Agent will
distribute to each Lender and each other Agent each document or instrument
received for its account and copies of all other communications received by such
Agent from the Borrower for distribution to the Lenders by the such Agent in
accordance with the terms of this Agreement or any other Loan Document.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders; provided, however, that no such
amendment, modification or waiver shall:
(a) extend any Commitment Termination Date, change any Commitment to
any other Commitment, amend, modify or waive any provision of this Section
10.1 or reduce the percentages
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specified in the definitions of the terms "Required Lenders",
"Supermajority Revolving Lenders" or "Supermajority Term A and B Lenders",
or consent to the assignment or transfer by the Borrower of its rights and
obligations under any Loan Document to which it is a party, in each case
without the consent of each Lender directly and adversely affected
thereby;
(b) forgive any principal of or interest on any Lender's Loan,
reduce the stated rate of any interest hereunder or any fees described in
Article III payable to any Lender, extend the Stated Maturity Date for any
Lender's Loan or extend any scheduled time of payment of such interest or
such fees (other than as a result of waiving the applicability of any
post-default increase in interest rates) without the consent of such
Lender;
(c) increase the aggregate amount of any Lender's Percentage of any
Commitment Amount or increase the aggregate amount of any Loans required
to be made by a Lender pursuant to its Commitments without the consent of
such Lender;
(d) extend the due date (other than the Stated Maturity Date, as to
which clause (b) above applies) for any scheduled repayment or prepayment
of, or decrease the relative proportion of any mandatory prepayment to be
received by the Lenders holding
(i) Revolving Loans without the consent of the Required
Revolving Lenders,
(ii) Term A Loans without the consent of the Required Term A
Lenders or
(iii) Term B Loans without the consent of the Required Term B
Lenders;
(e) except to the extent expressly permitted under the Loan
Documents, release (i) all or substantially all of the Obligors that are
guarantors under the Guaranty from their obligations under the Guaranty or
(ii) all or substantially
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all of the collateral security provided under the Loan Documents,
including all Pledged Shares (as such term is defined in the Pledge
Agreement), in either case without the consent of (i) the Supermajority
Revolving Lenders and (ii) the Supermajority Term A and B Lenders; or
(f) affect adversely the interests, rights or obligations of any
Agent qua such Agent, the Swing Line Lender qua the Swing Line Lender or
the Issuer qua the Issuer, unless consented to by such Agent, the Swing
Line Lender or the Issuer, as the case may be; and
provided, further, that at any time that no Default or Event of Default has
occurred and is continuing, the Revolving Loan Commitment of any Lender may be
increased (and such Lender's Percentage and the Revolving Loan Commitment Amount
may be increased accordingly) to finance a Permitted Acquisition, with the
consent of such Lender and the Borrower and without the consent of the Required
Lenders, so long as (w) the Increased Commitment Amount (as defined below) at
such time, when added to the amount of Indebtedness incurred pursuant to clause
(k) of Section 7.2.2 and outstanding at such time, does not exceed the limits
set forth therein, (x) the Borrower pledges the Capital Stock of any Person
acquired pursuant thereto to the Administrative Agent to the extent required
under Section 7.1.9, (y) such acquired Person executes a supplement to the
Guaranty to the extent required under Section 7.1.9 and (z) to the extent
determined by the Administrative Agent to be necessary to ensure pro rata
borrowings commencing with the initial borrowing after giving effect to such
increase, the Borrower shall prepay any LIBO Rate Loans outstanding immediately
prior to such initial borrowing; as used herein and in clauses (g) and (k) of
Section 7.2.2, the "Increased Commitment Amount" means at any time, the
aggregate amount of all increases pursuant to this proviso made at or prior to
such time less the aggregate amount of all voluntary reductions of the Revolving
Loan Commitment Amount made prior to such time.
No failure or delay on the part of any Agent, the Issuer or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right
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preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by any Agent, the Issuer or any Lender under this Agreement or any
other Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto, in the
case of the Borrower or any Agent, or set forth below its name in Annex I hereto
or in a Lender Assignment Agreement, in the case of any Lender (including in its
separate capacity as the Swing Line Lender or Issuer, if applicable), or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when the confirmation of transmission thereof is received by the
transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay or
reimburse on demand all reasonable and documented costs and expenses of the
Agents (including the reasonable, itemized fees and out-of-pocket expenses of
counsel to the Agents and of local and foreign counsel, if any, who may be
retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and
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(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements, amendments and restatements and
other modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or the terms of any Loan
Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save each Agent, the Issuer and the
Lenders harmless from all liability for, any stamp or other taxes which may be
payable in connection with the execution or delivery of this Agreement, the
Credit Extensions hereunder, or the issuance of the Notes, Letters of Credit or
any other Loan Documents. The Borrower also agrees to reimburse each Agent, the
Issuer and each Lender upon demand for all reasonable and documented
out-of-pocket costs and expenses (including reasonable attorneys' fees and legal
expenses of counsel to each Agent, the Issuer and each Lender) incurred by such
Agent, the Issuer or such Lender in connection with (x) the negotiation of any
restructuring or "work-out" with the Borrower, whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds each Agent, the Issuer and
each Lender and each their respective Affiliates, and each other Person
controlling any of the foregoing within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable
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attorneys' fees and disbursements, whether incurred in connection with actions
between or among the parties hereto or the parties hereto and third parties
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into, performance and enforcement of this Agreement
and any other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not any Agent, the Issuer or any Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive payment in full of the Obligations and any transfer
of the property of the Borrower or any of its Subsidiaries by foreclosure
or by a deed in lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the control of, the
Borrower or such Subsidiary);
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except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct or resulting from disputes among the
Agents, the Lenders and/or their transferees. If and to the extent that
the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, each
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Agent and each Lender (or notice thereof satisfactory to the Agents) shall have
been received by the Administrative Agent and notice thereof shall have been
given by the Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST,
LOAN CHARGES AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A
SECURITY INTEREST OR MORTGAGE HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. This Agreement, the Notes, the other Loan Documents and
the Fee Letter constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and thereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agents and
all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit Outstandings and Commitments to one or more other Persons in
accordance with this Section 10.11.
SECTION 10.11.1. Assignments. (a) Upon prior notice to the Borrower and
the Administrative Agent, any Lender may at any time assign and delegate to one
or more Eligible Assignees with
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the consent of the Borrower and the Administrative Agent (which consents shall
not be required if the Eligible Assignee is a Lender or an Affiliate of a Lender
and shall not be unreasonably withheld or delayed if such consents are in fact
required), all or any fraction of such Lender's total Loans, Letter of Credit
Outstandings and Commitments in a minimum aggregate amount of the lesser of
$5,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent in their sole and absolute discretion) and the entire
remaining amount of such Lender's Loans, Letter of Credit Outstandings and
Commitments (except that no such minimum shall be applicable on an assignment to
a Lender or an Affiliate of a Lender); provided, however, that with respect to
assignments solely of Revolving Loans, the assigning Lender must assign a
pro-rata portion of each of its Revolving Loan Commitments, Revolving Loans and
interest in Letters of Credit Outstandings. The Borrower and each other Obligor
and each of the Agents shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Eligible Assignee until
(i) notice of such assignment and delegation, together with (A)
payment instructions, (B) the Internal Revenue Service Forms or other
statements contemplated or required to be delivered pursuant to Section
4.6, if applicable, (C) addresses and related information with respect to
such Eligible Assignee, shall have been delivered to the Borrower and the
Administrative Agent by such Lender and such Eligible Assignee and (D) the
Administrative Agent has made the appropriate entries in the Register;
(ii) such Eligible Assignee shall have executed and delivered to the
Borrower and the Administrative Agent a Lender Assignment Agreement,
accepted by such Agent; and
(iii) the processing fees described below shall have been paid.
From and after the date that such Agent accepts such Lender Assignment
Agreement, (x) the Eligible Assignee thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Eligible Assignee in
connection with such
-141-
Lender Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (y) the assignor Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Accrued interest on that part of the Loans assigned, if any, and accrued fees,
shall be paid as provided in the Lender Assignment Agreement. Accrued interest
and accrued fees shall be paid at the same time or times provided in this
Agreement. Such assignor Lender or such Eligible Assignee must also pay a
processing fee in the amount of $3,500 to the Administrative Agent upon delivery
of any Lender Assignment Agreement. Notwithstanding any other term of this
Section 10.11.1, the agreement of the Swing Line Lender to provide the Swing
Line Loan Commitment shall not impair or otherwise restrict in any manner the
ability of the Swing Line Lender to make any assignment of its Loans or
Commitments, it being understood and agreed that the Swing Line Lender may
terminate its Swing Line Loan Commitment, either in whole or in part, in
connection with the making of any assignment. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
void.
(b) Notwithstanding anything to the contrary set forth above, any Lender
may (without requesting the consent of the Borrower or the Administrative Agent)
pledge its Loans to a Federal Reserve Bank in support of borrowings made by such
Person from such Federal Reserve Bank. Upon the request of the Lender, solely to
facilitate the pledge or assignment of its Loans to any Federal Reserve Bank,
the Borrower shall issue Notes to such Lender. Upon the request of an assignor
Lender, if applicable, solely to facilitate such pledge or assignment of its
Loans to any Federal Reserve Bank, the Borrower shall issue a reduced Note to
such assignor in exchange and replacement for its then existing Note. The
reasonable costs and expenses incurred in connection with the issuance of each
Note shall be for the account of the Borrower.
-142-
(c) The Administrative Agent, on behalf of the Borrower, shall maintain at
the address of the Administrative Agent specified below its signature hereto (or
at such other address as may be designated by the Administrative Agent from time
to time in accordance with Section 10.2) a copy of each Lender Assignment
Agreement delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the Commitment of and principal
amount of the Loans owing to each Lender from time to time. The entries in the
Register shall be conclusive and binding, in the absence of clearly demonstrable
error, and the Borrower, the Agents and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder shall be effective only
upon appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
SECTION 10.11.2. Participations. Upon prior written notice to the Borrower
and the Administrative Agent, any Lender may at any time sell to one or more
commercial lenders, financial institutions or other Persons (each of such
commercial lenders, financial institutions or other Persons being herein called
a "Participant") participating interests in any of the Loans, Letter of Credit
Outstandings, Commitments, or other interests of such Lender hereunder
(including loan derivatives and similar swap arrangements based on such Lender's
interests hereunder); provided, however, that
(a) no participation contemplated in this Section 10.11 shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and each Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and each of the
other Loan Documents;
-143-
(d) no Participant, unless such Participant is an Affiliate of such
Lender or is itself a Lender, or unless the Borrower otherwise agrees in
writing, shall be entitled to require such Lender to take or refrain from
taking any action hereunder or under any other Loan Document, except that
such Lender may agree with any
-144-
Participant that such Lender will not, without such Participant's consent,
to the extent requiring the consent of such Lender, take any action of the
type described in clause (b) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.1, 4.3, 4.5, 4.6, 4.8, 7.1.1 and 10.4, shall be considered a Lender.
Each Participant shall only be indemnified for increased costs pursuant to
Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which sold such
participating interest to such Participant concurrently is entitled to make, and
does make, a claim on the Borrower for such increased costs. Any Lender that
sells a participating interest in any Loan, Commitment or other interest to a
Participant under this Section 10.11.2 shall indemnify and hold harmless the
Borrower and each Agent from and against any taxes, penalties, interest or other
costs or losses (including reasonable attorneys' fees and expenses) incurred or
payable by the Borrower or such Agent as a result of the failure of the Borrower
or such Agent to comply with its obligations to deduct or withhold any Taxes
from any payments made pursuant to this Agreement to such Lender or such Agent,
as the case may be, which Taxes would not have been incurred or payable if such
Participant had been a NonU.S. Lender that was entitled to deliver to the
Borrower, such Agent or such Lender, and did in fact so deliver, a duly
completed and valid Form 1001 or 4224 (or applicable successor form) entitling
such Participant to receive payments under this Agreement without deduction or
withholding of any United States federal taxes. If amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
SECTION 10.12. Other Transactions. Nothing contained herein shall preclude
any Agent, the Issuer or any other Lender from engaging in any transaction, in
addition to those
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contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 10.13. Confidentiality. Each Lender agrees to maintain, in
accordance with its customary procedures for handling confidential information,
the confidentiality of all information provided to it by or on behalf of the
Borrower or any Subsidiary, or by any Agent on the Borrower's or such
Subsidiary's behalf, under this Agreement or any other Loan Document
("Confidential Information"), and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Borrower or any Subsidiary,
except to the extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by the Lender or (ii) was or
becomes available on a non-confidential basis from a source other than the
Borrower, provided that such source is not bound by a confidentiality agreement
with the Borrower known to the Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Lender is subject or in connection with
an examination of such Lender by any such Governmental Authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which any
Agent, any Lender or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors and
other professional advisors who have been advised that such information is
confidential pursuant to this Section 10.13; (G) to any Participant or Eligible
Assignee, actual or potential, provided that such Person shall have agreed in
writing to keep such information confidential to the same extent required of the
Lenders hereunder; and (H) to its Affiliates who have been advised that such
information is confidential pursuant to this Section 10.13. Unless prohibited by
applicable law or court order, each Lender and each Agent shall notify the
Borrower of any request by any Governmental Authority (other than any request in
connection with an examination of the financial condition of
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such Lender) for disclosure of Confidential Information prior to such
disclosure; provided further that in no event shall any Agent or any Lender be
obligated to return any materials furnished by the Borrower or any of its
Subsidiaries. This Section shall supersede any confidentiality letter or
agreement with respect to the Borrower or the Facilities entered into prior to
the date hereof.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE LENDERS, THE ISSUER OR
THE BORROWER IN CONNECTION HEREWITH OR THEREWITH SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN THE COUNTY OF NEW
YORK OF THE SATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN THE COUNTY OF NEW YORK OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION,
SUBJECT TO THE BORROWER'S RIGHT TO CONTEST SUCH JUDGMENT BY MOTION OR APPEAL ON
ANY GROUNDS NOT EXPRESSLY WAIVED IN THIS SECTION 10.14. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY LAW SUCH IMMUNITY IN RESPECT OF
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ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE LENDERS, THE ISSUER
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY AGENT, THE LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE LENDERS AND THE ISSUER ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
KSL RECREATION GROUP, INC.
By
---------------------------------------
Title:
Address: 00-000 XXX Xxxxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
-149-
AGENTS:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION, as a
Co-Syndication Agent and the
Documentation Agent
By
---------------------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx XxXxxxxx
THE BANK OF NOVA SCOTIA, as a
Co-Syndication Agent and the
Administrative Agent
By
---------------------------------------
Title:
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx
-150-
BANCAMERICA SECURITIES, INC., as
the Syndication Agent
By
---------------------------------------
Title:
Address: 000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
-151-
LENDERS:
DLJ CAPITAL FUNDING, INC.
By
---------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
---------------------------------------
Title:
BANK OF AMERICA ILLINOIS
By
---------------------------------------
Title:
BANKBOSTON, N.A.
By
---------------------------------------
Title:
BANKERS TRUST COMPANY
By
---------------------------------------
Title:
-152-
CITICORP USA, INC.
By
---------------------------------------
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
---------------------------------------
Title:
CREDIT SUISSE FIRST BOSTON
By
---------------------------------------
Title:
By
---------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
---------------------------------------
Title:
FLEET NATIONAL BANK
By
---------------------------------------
Title:
-153-
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By:ING Capital Advisors, Inc.,
as Investment Advisor
By
---------------------------------------
Title:
KZH HOLDING CORPORATION II
By
---------------------------------------
Title:
XXXXXX COMMERCIAL PAPER INC.
By
---------------------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By
---------------------------------------
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By
---------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC
By
---------------------------------------
Title:
-154-
NATIONSBANK OF TEXAS, N.A.
By
---------------------------------------
Title:
THE SAKURA BANK, LIMITED
By
---------------------------------------
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By
---------------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.
By
---------------------------------------
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By
---------------------------------------
Title:
-155-
XXXXX FARGO BANK, N.A.
By
---------------------------------------
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By
---------------------------------------
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------------
Title:
-156-
ANNEX I
LENDER INFORMATION
1. DLJ CAPITAL FUNDING, INC.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxx Address: 000 Xxxx Xxxxxx 0.00000%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 5.50000%
Attention: Xxxxx XxXxxxxx Attention: Xxxxx XxXxxxxx Term B Loan Commitment
5.00000%
2. THE BANK OF NOVA SCOTIA
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: One Liberty Plaza Address: Xxx Xxxxxxx Xxxxx 0.00000%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 21.00000%
Attention: Xxxx Xxxxxx Attention: Xxxx Xxxxxx Term B Loan Commitment
21.00000%
3. BANK OF AMERICA ILLINOIS
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxxx Xxxx. Address: 000 Xxxx Xxxxxxx Xxxx. 0.00000%
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 5.50000%
Attention: Xxxxxxx Xxxxxx Attention: Xxxxxxx Xxxxxx Term B Loan Commitment
5.50000%
4. BANKBOSTON, N.A.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxxxx Xxxxxx Address: 000 Xxxxxxx Xxxxxx 0.00000%
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 2.50000%
Attention: Xxxxxx Xxxxxx Attention: Xxxxxx Xxxxxx Term B Loan Commitment
2.50000%
A-2
5. BANKERS TRUST COMPANY
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxx Xxxxx Xxxxxx Address: 000 Xxxxx Xxxxx Xxxxxx 0.00000%
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 5.00000%
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx Term B Loan Commitment
5.00000%
6. CITICORP USA, INC.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxx Address: Citibank, N.A. 4.92857%
6th Floor - Zone 0 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 00 Xxxxxxxxxx Xxxxxx Term A Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxx XX000XX 4.37500%
Facsimile No.: (000) 000-0000
Facsimile No.: 000-000-000000000 Term B Loan Commitment
Attention: Xxxxxxx Xxxxxx 4.37500%
Attention: Xxxxxx X'Xxxx
A-3
7. CREDIT LYONNAIS NEW YORK BRANCH
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 1301 Ave. of the Americas Address: 1301 Ave. of the Americas 4.92857%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 4.37500%
Attention: Xxxxxxx Xxxxxxxxxx Attention: Xxxxxxx Xxxxxxxxxx Term B Loan Commitment
4.37500%
8. CREDIT SUISSE FIRST BOSTON
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 00 Xxxxxxx Xxxxxx Address: 00 Xxxxxxx Xxxxxx 0.00000%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 1.5000%
Attention: Xxxx Xxxxxxxxxx Attention: Xxxx Xxxxxxxxxx Term B Loan Commitment
1.50000%
A-4
9. THE FIRST NATIONAL BANK OF
CHICAGO
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: One First Nat'l Plaza Address: One First Nat'l Plaza 6.28571%
10th Fl., Suite 0000 00xx Xx., Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Term A Loan Commitment
0%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxx Xxxxx Attention: Xxxxxx Xxxxx 0%
10. FLEET NATIONAL BANK
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: One Federal Street Address: One Federal Street 4.28571%
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 2.50000%
Attention: Xxxxx XxXxxxx Attention: Xxxxx XxXxxxx Term B Loan Commitment
2.50000%
A-5
11. THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxx Xxxxx Xxxxxx Address: 000 Xxxxx Xxxxx Xxxxxx 0%
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000 Term A Loan Commitment
4.00000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxx Xxxxxxx-Xxxxxx Attention: Xxxxxx Xxxxxxx-Xxxxxx 4.00000%
12. KZH HOLDING CORPORATION II
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: KZH Holding Corporation II Address: KZH Holding Corporation II 0.00000%
x/x Xxxxx Xxxxxxxxx Xxxx x/x Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xx. 00xx Xx. 000 Xxxx 00xx Xx. 00xx Xx. Term A Loan Commitment
New York, New York 10001 Xxx Xxxx, Xxx Xxxx 00000 4.00000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 Term B Loan Commitment
4.00000%
Attention: Xxxxxx Xxxxxxx Attention: Xxxxxx Xxxxxxx
A-6
13. XXXXXX COMMERCIAL PAPER INC.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 3 World Financial Center Address: 3 World Financial Center 4.28571%
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Term A Loan Commitment
2.50000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxxxx Xxxxxxx 2.50000%
14. XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxxxxx Xxxx Xxxx Address: 000 Xxxxxxxx Xxxx Xxxx 0%
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 8.00000%
Attention: Xxxx Xxxxxxxx Attention: Xxxx Xxxxxxxx Term B Loan Commitment
8.00000%
A-7
15. XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxxxx Xxxxxxxxxx Xx. Address: 000 Xxxxxxx Xxxxxxxxxx Xx. 4.92857%
Mail Code: 3/OPS2 Mail Code: 3/OPS2
Xxxxxx, XX 00000 Xxxxxx, XX 00000 Term A Loan Commitment
4.37500%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxxx XxXxxxxxx Attention: Xxxxxxx XxXxxxxxx 4.37500%
16. NATIONAL WESTMINSTER BANK PLC
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxx Xxxxxx Address: 000 Xxxxx Xxxxxx 0.00000%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 4.37500%
Attention: Xxxx Xxxxxxx Attention: Xxxx Xxxxxxx Term B Loan Commitment
4.37500%
A-8
17. NATIONSBANK OF TEXAS, N.A.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxx Address: 000 Xxxx Xxxxxx 0.00000%
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 0%
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx Term B Loan Commitment
0%
18. THE SAKURA BANK, LIMITED
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxx Address: 000 Xxxx Xxxxxx 4.28571%
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Term A Loan Commitment
2.50000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxxxxx Xxxxxx Attention: Xxxxxxxxx Xxxxxx 2.50000%
A-9
19. THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
Revolving Loan Commitment
Domestic Office: LIBOR Office: 4.28571%
Address: 000 Xxxx Xxxxxx Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Term A Loan Commitment
2.50000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxxx Xxxxxx Attention: Xxxxxxx Xxxxxx 2.50000%
20. UNION BANK OF CALIFORNIA, N.A.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 00 Xxxxx Xxxx Xxxxxx Address: 00 Xxxxx Xxxx Xxxxxx 5.71428%
Xxxxx 000 Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 Term A Loan Commitment
1.00000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxxx Xxxx Attention: Xxxxxx Xxxx 1.00000%
A-10
21. XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: One Parkview Plaza Address: One Parkview Plaza 0%
Oakbrook Terrace, IL Xxxxxxxx Xxxxxxx, XX
00000 60181 Term A Loan Commitment
8.00000%
Facsimile No.: (000) 000-0000/41 Facsimile No.: (000) 000-0000/41
Term B Loan Commitment
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx 8.00000%
with a copy to: with a copy to:
Xxxxx Xxxxxx Xxxx & Xxxxx Xxxxx Xxxxxx Xxxx & Trust
Corporate Trust Department Corporate Trust Department
X.X. Xxx 000 X.X. Xxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000/67 Facsimile No.: (000) 000-0000/67
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx
A-11
22. XXXXX FARGO BANK, N.A.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxxxxxxxx Xxxxxx Address: 000 Xxxxxxxxxx Xxxxxx 4.28571%
17th Floor, MAC 0000-000 00xx Xxxxx, XXX 0000-000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 Term A Loan Commitment
2.50000%
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Term B Loan Commitment
Attention: Xxxxx Xxxxxxx Attention: Xxxxx Xxxxxxx 2.50000%
23. XXXXXX XXXXXXX SENIOR FUNDING, INC.
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 0000 Xxxxxxxx, 00xx Xxxxx Address: 0000 Xxxxxxxx, 00xx Xxxxx 0%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile: (000) 000-0000 2.50000%
Attention: Xxxx Xxxxx Attention: Xxxx Xxxxx Term B Loan Commitment
2.50000%
24. THE CHASE MANHATTAN BANK
Domestic Office: LIBOR Office: Revolving Loan Commitment
Address: 000 Xxxx Xxxxxx Address: 000 Xxxx Xxxxxx 0.00000%
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Term A Loan Commitment
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000 1.50000%
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxxx Term B Loan Commitment
1.50000%
A-12
