EXHIBIT 10.1
EXECUTION COPY
================================================================================
$1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
among
SIX FLAGS, INC.,
SIX FLAGS OPERATIONS INC.,
SIX FLAGS THEME PARKS INC.,
as Primary Borrower,
THE FOREIGN SUBSIDIARY BORROWERS
From Time to Time Parties Hereto,
The Several Lenders
from Time to Time Parties Hereto,
THE BANK OF NEW YORK,
and
BANK OF AMERICA, N.A.,
as Syndication Agents,
CREDIT LYONNAIS, NEW YORK BRANCH
as Documentation Agent,
and
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of July 8, 2002
================================================================================
XXXXXX BROTHERS INC.,
as Sole and Exclusive Advisor, Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS............................................................................1
1.1. Defined Terms............................................................................1
1.2. Other Definitional Provisions...........................................................30
SECTION 2. AMOUNT AND TERMS OF TRANCHE B TERM LOAN COMMITMENTS...................................30
2.1. Tranche B Term Loan Commitments.........................................................30
2.2. Procedure for Tranche B Term Loan Borrowing.............................................31
2.3. Repayment of Tranche B Term Loans.......................................................31
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND SWING LINE COMMITMENT............32
3.1. Revolving Credit Commitments............................................................32
3.2. Procedure for Revolving Credit Borrowing................................................32
3.3. Swing Line Commitment...................................................................33
3.4. Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.......................33
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS.........................................34
4.1. Multicurrency Commitments...............................................................34
4.2. Procedure for Multicurrency Borrowing...................................................35
4.3. Automatic Reduction of Multicurrency Commitment.........................................35
4.4. Certain Prepayments.....................................................................36
4.5. Certain Additional Provisions Relating to Multicurrency Loans...........................36
SECTION 5. LETTERS OF CREDIT.....................................................................37
5.1. L/C Commitment..........................................................................37
5.2. Procedure for Issuance of Letter of Credit..............................................38
5.3. Fees and Other Charges..................................................................38
5.4. L/C Participations......................................................................38
5.5. Reimbursement Obligation of the Borrowers...............................................39
5.6. Obligations Absolute....................................................................39
5.7. Letter of Credit Payments...............................................................40
5.8. Applications............................................................................40
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND THE LETTERS OF CREDIT..................40
6.1. Repayment of Loans; Evidence of Debt....................................................40
6.2. Commitment Fees, Etc....................................................................41
6.3. Termination or Reduction of Revolving Credit Commitments; Multicurrency Commitments.....41
6.4. Optional Prepayments....................................................................42
6.5. Mandatory Prepayments and Commitment Reductions.........................................42
6.6. Conversion and Continuation Options.....................................................43
6.7. Minimum Amounts and Maximum Number of Eurocurrency Tranches.............................44
6.8. Interest Rates and Payment Dates........................................................44
6.9. Computation of Interest and Fees........................................................44
6.10. Inability to Determine Interest Rate....................................................45
6.11. Pro Rata Treatment and Payments.........................................................45
6.12. Requirements of Law.....................................................................48
i
Page
----
6.13. Taxes...................................................................................49
6.14. Indemnity...............................................................................50
6.15. Illegality..............................................................................50
6.16. Change of Lending Office................................................................51
6.17. Replacement of Lenders under Certain Circumstances......................................51
6.18. Optional Increase of Facilities.........................................................51
SECTION 7. REPRESENTATIONS AND WARRANTIES........................................................53
7.1. Financial Condition.....................................................................53
7.2. No Change...............................................................................54
7.3. Existence; Compliance with Law..........................................................54
7.4. Corporate Power; Authorization; Enforceable Obligations.................................54
7.5. No Legal Bar............................................................................55
7.6. Litigation..............................................................................55
7.7. No Default..............................................................................55
7.8. Ownership of Property; Liens............................................................55
7.9. Intellectual Property...................................................................55
7.10. Taxes...................................................................................56
7.11. Federal Regulations.....................................................................56
7.12. Labor Matters...........................................................................56
7.13. ERISA...................................................................................56
7.14. Investment Company Act; Other Regulations...............................................56
7.15. Subsidiaries............................................................................57
7.16. Use of Proceeds.........................................................................57
7.17. Environmental Matters...................................................................57
7.18. Accuracy of Information, Etc............................................................58
7.19. Security Documents......................................................................58
7.20. Solvency................................................................................59
7.21. Regulation H............................................................................59
7.22. Parks...................................................................................59
SECTION 8. CONDITIONS PRECEDENT..................................................................60
8.1. Conditions to Initial Extension of Credit...............................................60
8.2. Conditions to Amendment and Restatement Effective Date..................................60
8.3. Conditions to Each Extension of Credit..................................................63
SECTION 9. AFFIRMATIVE COVENANTS.................................................................63
9.1. Financial Statements and Other Information..............................................63
9.2. Notices of Material Events..............................................................65
9.3. Existence, Etc..........................................................................66
9.4. Insurance...............................................................................67
9.5. Compliance with Contractual Obligations and Requirements of Law.........................69
9.6. Additional Collateral, Etc..............................................................69
9.7. Further Assurances......................................................................71
9.8. Environmental Laws......................................................................71
9.9. Clean Down..............................................................................72
9.10. Equity Contributions and Payments.......................................................72
SECTION 10. NEGATIVE COVENANTS....................................................................72
10.1. Certain Financial Covenants.............................................................72
10.2. Indebtedness............................................................................75
10.3. Liens...................................................................................76
ii
Page
----
10.4. Prohibition of Fundamental Changes.....................................................77
10.5. Restricted Payments....................................................................80
10.6. Capital Expenditures...................................................................81
10.7. Investments............................................................................81
10.8. Prepayment of Certain Indebtedness.....................................................82
10.9. Transactions with Affiliates...........................................................82
10.10. Changes in Fiscal Periods..............................................................83
10.11. Certain Restrictions...................................................................83
10.12. Lines of Business......................................................................83
10.13. Modifications of Certain Documents.....................................................84
10.14. Limitation on Activities of Parent and Holdings........................................84
10.15. Limitation on Hedging Agreements.......................................................85
SECTION 11. EVENTS OF DEFAULT....................................................................85
SECTION 12. THE AGENTS...........................................................................88
12.1. Appointment............................................................................88
12.2. Delegation of Duties...................................................................88
12.3. Exculpatory Provisions.................................................................88
12.4. Reliance by Agents.....................................................................89
12.5. Notice of Default......................................................................89
12.6. Non-Reliance on Agents and Other Lenders...............................................89
12.7. Indemnification........................................................................90
12.8. Agent in Its Individual Capacity.......................................................90
12.9. Successor Agents.......................................................................90
12.10. Authorization to Release Liens and Guarantees..........................................91
12.11. The Arranger and Syndication Agents....................................................91
SECTION 13. MISCELLANEOUS........................................................................91
13.1. Amendments and Waivers.................................................................91
13.2. Notices................................................................................93
13.3. No Waiver; Cumulative Remedies.........................................................95
13.4. Survival of Representations and Warranties.............................................95
13.5. Payment of Expenses....................................................................95
13.6. Successors and Assigns; Participations and Assignments.................................96
13.7. Adjustments; Set-off...................................................................98
13.8. Counterparts...........................................................................99
13.9. Severability...........................................................................99
13.10. Integration............................................................................99
13.11. GOVERNING LAW..........................................................................99
13.12. Submission To Jurisdiction; Waivers....................................................99
13.13. Acknowledgments.......................................................................100
13.14. Confidentiality.......................................................................100
13.15. Release of Collateral and Guarantee Obligations.......................................101
13.16. Accounting Changes....................................................................101
13.17. Delivery of Lender Addenda............................................................101
13.18. WAIVERS OF JURY TRIAL.................................................................101
13.19. Effect of Amendment and Restatement of the Existing Credit Agreement..................102
iii
ANNEXES:
A Pricing Grid
B Existing Letters of Credit
SCHEDULES:
1.1(a) Mortgaged Property
1.1(b) Existing Parks
7.4 Consents, Authorizations, Filings and Notices
7.8 Material Real Properties
7.15 Subsidiaries
7.19(a)-1 UCC Filing Jurisdictions
7.19(a)-2 UCC Financing Statements to Remain on File
7.19(a)-3 UCC Financing Statements to be Terminated
7.19(b) Mortgage Amendment Filing Jurisdictions
7.21 Mortgaged Properties in Flood Zones
8.2(j) Environmental Reports
8.2(o)(i) Real Properties for which Mortgagee's Title Insurance Policies or
Endorsements Shall be Obtained
8.2(o)(ii) Real Properties for which Surveys Have Been Delivered
10.2(b) Existing Indebtedness
10.3(b) Existing Liens
10.7(a) Existing Investments
EXHIBITS:
A Copy of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage Amendment
D-2 Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Weil, Gotshal & Xxxxxx LLP
F-2 Form of Legal Opinion of General Counsel
F-3 Form of Legal Opinion of Xxxxx Peabody LLP
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Joinder Agreement
L Form of Foreign Subsidiary Opinion
M Form of Borrowing Notice
N Form of Consent and Confirmation
O Form of Subordination Agreement
iv
AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of July 8, 2002, among
SIX FLAGS, INC., a Delaware corporation ("PARENT"), SIX FLAGS OPERATIONS INC., a
Delaware corporation ("HOLDINGS"), SIX FLAGS THEME PARKS INC., a Delaware
corporation (the "PRIMARY BORROWER"), each FOREIGN SUBSIDIARY BORROWER (as
hereinafter defined), the several banks and other financial institutions or
entities from time to time parties to this Agreement (as defined below) (the
"LENDERS"), THE BANK OF
NEW YORK and BANK OF AMERICA, N.A., as syndication
agents (collectively, in such capacity, the "SYNDICATION AGENTS"), CREDIT
LYONNAIS,
NEW YORK BRANCH, as documentation agent (in such capacity, the
"DOCUMENTATION AGENT"), and XXXXXX COMMERCIAL PAPER INC., as administrative
agent (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Primary Borrower is a party to the
Credit Agreement,
dated as of November 5, 1999 (as amended, supplemented or otherwise modified
from time to time prior to the date hereof, the "EXISTING
CREDIT AGREEMENT"),
among Parent, Holdings, the Primary Borrower, the Foreign Subsidiary Borrowers
from time to time parties thereto, the lenders party thereto, Xxxxxx Commercial
Paper Inc., as administrative agent, and others, pursuant to which such lenders
have agreed to extend, and have extended, credit to the Primary Borrower and the
Foreign Subsidiary Borrowers;
WHEREAS, the Primary Borrower has requested that the Existing
Credit
Agreement be amended and restated as set forth below; and
WHEREAS, it is the intent of the parties hereto that this Agreement
not constitute a novation of the obligations and liabilities existing under the
Existing
Credit Agreement and which remain outstanding or evidence repayment of
any such obligations and liabilities and that this Agreement amend and restate
in its entirety the Existing
Credit Agreement and re-evidence the obligations of
the Borrowers outstanding thereunder;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree that on the Amendment and
Restatement Effective Date (as defined below), the Existing
Credit Agreement
shall be amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ACQUISITION": any acquisition, whether in a single transaction or
series of related transactions, by Holdings or any one or more of its
Subsidiaries of (a) all or a substantial part of the assets, or of a
business, unit or division, of any Person, whether through purchase of
assets or securities, by merger or otherwise; or (b) any Person that
becomes a Subsidiary after giving effect to such acquisition.
"ADJUSTMENT DATE": as defined in the Pricing Grid.
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFILIATE": any Person that directly or indirectly controls, or is
under common control with, or is controlled by, Holdings and, if such
Person is an individual, any member of the immediate family (including
parents, spouse, children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with")
means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), PROVIDED that, in any event, any Person that owns directly or
indirectly securities having 10% or more of the voting power for the
election of directors or other governing body of a corporation or 10% or
more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
control such corporation or other Person. Notwithstanding the foregoing,
(a) no individual shall be an Affiliate solely by reason of his or her
being a director, officer or employee of Parent, Holdings or any of its
Subsidiaries and (b) none of (i) the Wholly Owned Subsidiaries of Parent,
(ii) Marine World/Africa USA in Vallejo, California, (iii) Marine World
Joint Powers Authority, a joint exercise of powers authority created under
the laws of the State of California, or (iv) the joint venture established
pursuant to the Spanish WB Agreements, shall be Affiliates.
"AGENTS": the collective reference to the Syndication Agents, the
Documentation Agent and the Administrative Agent.
"AGGREGATE EXPOSURE": with respect to any Lender at any time, an
amount equal to (a) until the Amendment and Restatement Effective Date, the
sum of (i) the aggregate then unpaid principal amount of such Lender's
Tranche B Term Loans and (ii) the aggregate amount of such Lender's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate
then unpaid principal amount of such Lender's Tranche B Term Loans, (ii)
the aggregate then unpaid principal amount of such Lender's Optional Term
Loans, (iii) the amount of such Lender's Revolving Credit Commitment then
in effect or, if the Revolving Credit Commitments have been terminated, the
amount of such Lender's Revolving Extensions of Credit then outstanding and
(iv) the amount of such Lender's Multicurrency Commitment then in effect
or, if the Multicurrency Commitments have been terminated, the amount of
such Lender's Multicurrency Extensions of Credit then outstanding.
"AGGREGATE EXPOSURE PERCENTAGE": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the sum of the Aggregate Exposures of all Lenders
at such time.
"AGREEMENT": this Amended and Restated
Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"AMENDMENT AND RESTATEMENT EFFECTIVE DATE": the date on which each of
the conditions precedent specified in Section 8.2 shall have been
satisfied, which date shall be no later than July 8, 2002.
"ANNIVERSARY DATE": as defined in Section 9.4.
"APPLICABLE EXCHANGE DATE": (a) with respect to any Multicurrency Loan
to be made, the date on which the Eurocurrency Rate therefor is determined
for the initial Interest Period for such Multicurrency Loan, and (b) with
respect to any outstanding Multicurrency Loan, the date on which the
Eurocurrency Rate was determined for the then-current Interest Period with
respect to such Multicurrency Loan.
2
"APPLICABLE MARGIN": (a) with respect to Revolving Credit Loans, Swing
Line Loans and Multicurrency Loans, the rate per annum determined for such
Type of Loan pursuant to the Pricing Grid, PROVIDED that until the first
Adjustment Date occurring after December 31, 2002, the Applicable Margins
for such Loans shall not be less than those set forth in the Pricing Grid
opposite the Consolidated Leverage Ratio of less than 2.5 to 1.0 and
greater than or equal to 2.0 to 1.0 and (b) with respect to Tranche B Term
Loans, (i) 1.25% per annum in the case of Base Rate Loans and (ii) 2.25%
per annum in the case of Eurocurrency Loans.
"APPLICATION": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
"ARRANGER": Xxxxxx Brothers Inc., in its capacity as sole and
exclusive advisor, sole lead arranger and sole bookrunner.
"ASSET SALE": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
Section 10.4(c)) which yields gross proceeds to Holdings, or any of its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued
at fair market value in the case of other non-cash proceeds) in excess of
$1,000,000.
"ASSIGNEE": as defined in Section 13.6(c).
"ASSIGNMENT AND ACCEPTANCE": as defined in Section 13.6(c).
"ASSIGNOR": as defined in Section 13.6(c).
"AUTHORITY": as defined in the definition of "Marine World
Agreements".
"AVAILABLE MULTICURRENCY COMMITMENT": with respect to any
Multicurrency Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Multicurrency Commitment then in effect over (b) such
Lender's Multicurrency Extensions of Credit then outstanding; PROVIDED that
(i) with respect to any determination of the Available Multicurrency
Commitment hereunder, such determination shall be based on the Spot
Exchange Rate in effect on the Business Day immediately preceding the date
of determination of the Available Multicurrency Commitment and (ii) with
respect to any determination of fees payable under Section 6.2(b), such
determination shall be based on the Spot Exchange Rate in effect on the
Business Day immediately preceding the last Business Day of the quarter in
respect of which such payment is being made.
"AVAILABLE REVOLVING CREDIT COMMITMENT": with respect to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a)
such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; PROVIDED, that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Credit Commitment pursuant to
Section 6.2(a), the aggregate principal amount of Swing Line Loans then
outstanding shall be deemed to be zero.
"BANKRUPTCY CODE": the Federal Bankruptcy Code of 1978, as amended
from time to time.
"BASE CAPITAL EXPENDITURE AMOUNT": as defined in Section 10.6.
3
"BASE RATE": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day PLUS
1% and (c) the Federal Funds Effective Rate in effect on such day PLUS 1/2
of 1%. For purposes hereof: "PRIME RATE" shall mean the prime lending rate
of interest as set forth on the British Banking Association Telerate page 5
(or such other comparable page as may, in the opinion of the Administrative
Agent, replace such page for the purpose of displaying such rate), as in
effect from time to time (the Prime Rate not being intended to be the
lowest rate of interest charged by any Lender in connection with extensions
of credit to debtors); "BASE CD RATE" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; and "THREE-MONTH SECONDARY CD
RATE" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal
Reserve Bank of
New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in
New York City received at approximately 10:00
A.M.,
New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Reference Lender
from three
New York City negotiable certificate of deposit dealers of
recognized standing selected by it. Any change in the Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day
of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"BASE RATE LOANS": Loans for which the applicable rate of interest is
based upon the Base Rate.
"BENEFITTED LENDER": as defined in Section 13.7(a).
"BOARD": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"BORROWERS": the collective reference to the Primary Borrower and the
Foreign Subsidiary Borrowers.
"BORROWING DATE": any Business Day specified by a Borrower as a date
on which such Borrower requests the relevant Lenders to make Loans, or
issue Letters of Credit, hereunder.
"BUSINESS": as defined in Section 7.17(b).
"BUSINESS DAY": (a) for all purposes other than as covered by clause
(b) below, a day other than a Saturday, Sunday or other day on which
commercial banks in
New York City are authorized or required by law to
close and (b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurocurrency Loans, any
day which is a Business Day described in clause (a) and which is also a day
for trading by and between banks in Dollar deposits in the interbank
Eurodollar market; PROVIDED, that when such term is used for the purpose of
determining the date on which the Eurocurrency Base Rate is determined
under this Agreement for any Loan denominated in euro for any Interest
Period therefor and for
4
purposes of determining the first and last day of any such Interest Period,
references in this Agreement to Business Days shall be deemed to be
references to Target Operating Days.
"CAPITAL EXPENDITURES": for any period, expenditures (including,
without limitation, the aggregate amount of Capital Lease Obligations
incurred during such period) made by Holdings or any of its Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements) during such period, computed in accordance
with GAAP, but excluding (a) repairs in respect of any such assets and (b)
the amount of any such asset (i) to the extent such asset is acquired with,
or the acquisition cost thereof is reimbursed with, the Net Cash Proceeds
of Recovery Events, (ii) to the extent such asset is acquired with or the
acquisition cost thereof is reimbursed with, the Net Cash Proceeds of any
Disposition permitted hereunder, (iii) acquired pursuant to an Acquisition
permitted hereunder or (iv) acquired with the Unused Equity Proceeds
Amount.
"CAPITAL EXPENDITURES (DISCRETIONARY)": any Capital Expenditures which
do not constitute Capital Expenditures (Sustaining).
"CAPITAL EXPENDITURES (SUSTAINING)": any Capital Expenditures made in
the ordinary course of business for maintenance or upkeep of the assets of
Holdings or any of its Subsidiaries or required, in the reasonable judgment
of Holdings, to maintain the entertainment value of any Park at the level
existing on the last Business Day of the fiscal year of Holdings
immediately preceding the date of such expenditure.
"CAPITAL LEASE OBLIGATIONS": for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP, and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"C/D ASSESSMENT RATE": for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of
12 C.F.R. Section 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board, for
determining the maximum reserve requirement for a Depositary Institution
(as defined in Regulation D of the Board as in effect from time to time) in
respect of new non-personal time deposits in Dollars having a maturity of
30 days or more.
"CLOSING DATE": the date on which the conditions precedent set forth
in Section 8.1 of the Existing Credit Agreement were satisfied, which date
was November 5, 1999.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
5
"COLLATERAL": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document.
"COMMITMENT": with respect to any Lender, each of the Tranche B Term
Loan Commitment, the Revolving Credit Commitment, the Multicurrency
Commitment and the Optional Term Loan Commitment of such Lender.
"COMMITMENT FEE RATE": the rate per annum determined pursuant to the
Pricing Grid.
"COMPLIANCE CERTIFICATE": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
"CONFIDENTIAL INFORMATION MEMORANDUM": the Confidential Information
Memorandum dated June, 2002 and furnished to the Lenders prior to the
Amendment and Restatement Effective Date.
"CONSENT AND CONFIRMATION": the Consent and Confirmation,
substantially in the form of Exhibit N, to be executed and delivered by
each Loan Party on the Amendment and Restatement Effective Date.
"CONSOLIDATED CURRENT ASSETS": at any date, all amounts (other than
cash and Permitted Investments) 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 Holdings and its Subsidiaries at such date.
"CONSOLIDATED CURRENT LIABILITIES": at any date, 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 Holdings and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of Holdings and its Subsidiaries and
(b), without duplication, all Indebtedness consisting of Revolving Credit
Loans, Multicurrency Loans or Swing Line Loans, to the extent otherwise
included therein.
"CONSOLIDATED DEBT SERVICE": for any period, the sum, for Holdings and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of (a) all regularly scheduled payments of principal
of any Indebtedness during such period, including the principal component
of any payments in respect of Capital Lease Obligations, but excluding in
any event (i) any prepayments made pursuant to Section 6.4 or 6.5 during
such period, (ii) for any period including any portion of the period from
September 30, 2008 through June 30, 2009, the amount of principal payments
scheduled to be made during such period in respect of the Tranche B Term
Loans, (iii) for any period including any portion of the period from March
31, 2008 through the Multicurrency Termination Date, the amount of the
scheduled reductions of the Multicurrency Commitments during such period,
(iv) for any period, any payments made pursuant to the proviso following
the repayment schedule set forth in Section 2.3 and (v) for any period
through March 31, 2003, the amount of principal payments (including
premium, if any) made during such period in respect of the Holdings Senior
Notes PLUS (b) Consolidated Interest Expense for such period.
"CONSOLIDATED DEBT SERVICE COVERAGE RATIO": for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Debt Service
for such period.
6
"CONSOLIDATED EBITDA": for any period, the sum, for Holdings and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined before
interest income or expense and extraordinary or unusual items (and
excluding all barter and trade transactions): (a) operating income (or
loss) for such period (PLUS cash received for such period from investments
of Holdings or any of its Subsidiaries in partnerships or any Person for
which the investment is accounted for by the equity method), PLUS (b)
depreciation, amortization and other non-cash charges (to the extent
deducted in determining operating income, but excluding any such charge
that constitutes an accrual of or a reserve for cash charges for any future
period) for such period. Notwithstanding the foregoing, (i) if during any
period for which Consolidated EBITDA is being determined Holdings and its
Subsidiaries shall have consummated any Acquisition or Disposition then,
for all purposes of this Agreement (other than for purposes of the
definition of Excess Cash Flow), Consolidated EBITDA shall be determined on
a pro forma basis as if such Acquisition or Disposition had been made or
consummated on the first day of such period and (ii) when determining
Consolidated EBITDA for any period on a pro forma basis as provided in the
preceding clause (i) ending after the consummation of any Acquisition,
there shall be added (or subtracted) the respective amounts for such
Acquisition (and any other Acquisitions consummated prior to the last day
of such period) as agreed by Holdings and the Required Lenders.
"CONSOLIDATED FIXED CHARGES": for any period, the sum of (a)
Consolidated Debt Service for such period PLUS (b) the aggregate amount of
all Capital Expenditures (Sustaining) made during such period PLUS (c) the
aggregate amount paid, or required to be paid, in cash in respect of income
taxes of Holdings and its Subsidiaries for such fiscal period or (without
duplication) paid by Holdings pursuant to the Tax Sharing Agreement, PLUS
(d) the amount of Restricted Payments for such period (other than any
Restricted Payments permitted by clause (iv) or (v) of Section 10.5(c)).
For purposes of calculating the Consolidated Fixed Charges Coverage Ratio
for any period of four consecutive fiscal quarters, Holdings may, to the
extent necessary to satisfy the Consolidated Fixed Charges Coverage Ratio,
exclude up to $150,000,000 in the aggregate of (i) cash dividends made by
Holdings during such period to Parent to enable Parent to pay distributions
and other required payments under the Partnership Parks Agreements and (ii)
other cash payments by Holdings in respect of Subordinated Parent Advances.
"CONSOLIDATED FIXED CHARGES COVERAGE RATIO": as at any date, the ratio
of (a) Consolidated EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to such date to (b)
Consolidated Fixed Charges for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO": as at any date, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters
ending on or most recently ended prior to such date to (b) Consolidated
Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE": for any period, the sum, for Holdings
and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest
component of any payments in respect of Capital Lease Obligations but
excluding any capitalized financing fees paid during such period that are
to be charged to future periods) accrued or capitalized during such period
(whether or not actually paid during such period) PLUS (b) the net amount
payable (or minus the net amount receivable) under interest rate Hedging
Agreements during such period (whether or not actually paid or received
during such period) MINUS (c) (to the extent not already deducted in
computing Consolidated Interest Expense) the aggregate amount of interest
income for such period MINUS (d) interest expense in respect of the
Holdings Senior Notes. Notwithstanding the foregoing, if during any period
for which
7
Consolidated Interest Expense is being determined Holdings shall have
consummated any Acquisition or Disposition then, for all purposes of this
Agreement (other than for purposes of the definition of Excess Cash Flow),
Consolidated Interest Expense shall be determined on a pro forma basis as
if such Acquisition or Disposition (and any Indebtedness of Holdings or any
of its Subsidiaries incurred in connection with such Acquisition or repaid
or released as a result of such Disposition) had been made or consummated
(and such Indebtedness incurred or repaid or released) on the first day of
such period and as if the interest rate applicable to any incremental
Indebtedness of Holdings and its Subsidiaries is equal to the interest rate
applicable to Indebtedness of Holdings and its Subsidiaries in fact
outstanding during such period.
"CONSOLIDATED LEVERAGE RATIO": as at any date, the ratio of (a)
Consolidated Total Debt as at such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters ending on or most recently ended
prior to such date.
"CONSOLIDATED NET INCOME": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP;
PROVIDED, that in calculating Consolidated Net Income of Holdings and its
consolidated Subsidiaries for any period, there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of Holdings or is merged into or consolidated with Holdings or
any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of Holdings) in which Holdings or any of its Subsidiaries
has an ownership interest, except to the extent that any such income is
actually received by Holdings or such Subsidiary in the form of dividends
or similar distributions and (c) the undistributed earnings of any
Subsidiary of Holdings to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any
Loan Document) or Requirement of Law applicable to such Subsidiary.
"CONSOLIDATED TOTAL DEBT": as at any date, the aggregate amount of all
Indebtedness of Holdings and its Subsidiaries at such date (determined on a
consolidated basis without duplication in accordance with GAAP).
"CONSOLIDATED WORKING CAPITAL": at any date, the difference of (a)
Consolidated Current Assets on such date less (b) Consolidated Current
Liabilities on such date.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any material agreement, lease,
instrument or other undertaking to which such Person is a party or by which
it or any of its Property is bound.
"CONTROL INVESTMENT AFFILIATE": as to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or
more companies. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, to direct or cause the direction
of the management and policies of such Person, whether by contract or
otherwise.
"DEFAULT": any of the events specified in Section 11, whether or not
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"DELIVERY DATE": as defined in Section 9.4.
8
"DISPOSITION": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
"DISPOSITION INVESTMENT": with respect to any Disposition, any
promissory notes or other evidences of indebtedness or Investments received
by Holdings or any of its Subsidiaries in connection with such Disposition.
"DOLLAR EQUIVALENT AMOUNT": on any date of determination thereof, with
respect to the principal amount of any Multicurrency Loan denominated in
euro, the amount of Dollars that may be purchased with such amount of euro
at the Spot Exchange Rate on the Applicable Exchange Date.
"DOLLAR MULTICURRENCY COMMITMENT": as defined in Section 4.5(a).
"DOLLAR MULTICURRENCY LENDER": as defined in Section 4.5(a).
"DOLLARS" and "$": lawful currency of the United States of America.
"DOMESTIC SUBSIDIARY": any Subsidiary of Holdings or Parent, as
applicable, organized under the laws of any jurisdiction within the United
States of America.
"EMU": Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION": legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more
member states.
"ENVIRONMENTAL CLAIM": with respect to any Person, any written notice,
claim, demand or other communication (collectively, a "CLAIM") by any other
Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to natural
resources or other Property, personal injuries, fines or penalties arising
out of, based on or resulting from (a) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not
owned by such Person, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law. The term
"ENVIRONMENTAL CLAIM" shall include, without limitation, any claim by any
Governmental Authority for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable
Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from the presence of Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment, as
a result of any of the foregoing.
"ENVIRONMENTAL LAWS": any and all present and future Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, in
each case as now or hereafter in effect, relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or
outdoor environment, including, without limitation, ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes.
9
"ENVIRONMENTAL PERMITS": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required
under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE": any corporation or trade or business that is a
member of any group of organizations (a) described in Section 414(b) or (c)
of the Code of which Parent is a member and (b) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA
and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which Parent is a member.
"ERISA EVENT": any of the following events or conditions:
(a) any Reportable Event and any request for a waiver under Section
412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of intent
to terminate any Plan or any action taken by Parent or an ERISA Affiliate
to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by Parent or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by
Parent or any ERISA Affiliate that results in any withdrawal liability
under Section 4201 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by Parent or
any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or
that it intends to terminate or has terminated under Section 4041 A of
ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against Parent or any ERISA Affiliate to enforce Section
515 of ERISA, which proceeding is not dismissed within 60 days; or
(f) the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if Parent or an
ERISA Affiliate fails to timely provide security to the Plan in accordance
with the provisions of such Sections.
"EURO" and "EURO": the single currency of the EMU as constituted by
the Treaty on European Union and as referred to in EMU Legislation.
"EURO UNIT": the currency unit of the euro as defined in the EMU
Legislation.
"EUROCURRENCY BASE RATE": with respect to each day during each
Interest Period pertaining to a Loan under any Facility, the rate per annum
determined on the basis of the rate for deposits in the currency of such
Loan for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on the applicable page of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In
10
the event that such rate does not appear on the Telerate screen, the
"Eurocurrency Base Rate" for purposes of this definition shall be
determined by reference to such other comparable publicly available service
for displaying eurocurrency rates as may be selected by the Administrative
Agent.
"EUROCURRENCY LOANS": Loans under any Facility for which the
applicable rate of interest is based upon the Eurocurrency Rate.
"EUROCURRENCY RATE": with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurocurrency Base Rate
-------------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EUROCURRENCY RESERVE REQUIREMENTS": for any day, the aggregate
(without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"EUROCURRENCY TRANCHE": the collective reference to Eurocurrency Loans
of the same currency under any Facility, the then current Interest Periods
with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on
the same day).
"EVENT OF DEFAULT": any of the events specified in Section 11,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"EXCESS CASH FLOW": for any fiscal year of Holdings, the difference,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income
for such fiscal year, (ii) the amount of all non-cash charges (including
depreciation and amortization) deducted in arriving at such Consolidated
Net Income, (iii) the amount of the decrease, if any, in Consolidated
Working Capital for such fiscal year, (iv) the aggregate net amount of
non-cash loss on the Disposition of Property by Holdings and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income and (v) the net increase during such fiscal year
(if any) in deferred tax accounts of Holdings MINUS (b) the sum, without
duplication, of (i) the amount of all non-cash credits included in arriving
at such Consolidated Net Income, (ii) the aggregate amount actually paid by
Holdings and its Subsidiaries in cash during such fiscal year on account of
Capital Expenditures (minus the principal amount of Indebtedness incurred
in connection with such expenditures, and excluding any such expenditures
financed with the proceeds of any Reinvestment Deferred Amount and any such
expenditures financed with the Unused Equity Proceeds Amount), (iii) the
aggregate amount of all prepayments or repayments of Revolving Credit
Loans, Swing Line Loans and Multicurrency Loans during such fiscal year to
the extent accompanying permanent optional reductions of the Revolving
Credit Commitments or Multicurrency Commitments, as the case may be, and
all optional prepayments of the Tranche B Term Loans and other Funded Debt
during such fiscal year, (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including, without limitation,
the Tranche B Term Loans) of Holdings and its
11
Subsidiaries 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), (v) the amount of the
increase, if any, in Consolidated Working Capital for such fiscal year,
(vi) the aggregate net amount of non-cash gain on the Disposition of
Property by Holdings and its Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent
included in arriving at such Consolidated Net Income, (vii) the net
decrease during such fiscal year (if any) in deferred tax accounts of
Holdings, (viii) the aggregate amount of Restricted Payments made in cash
during such fiscal year (to the extent permitted under Section 10.5), and
(ix) the aggregate amount of Investments made in cash during such fiscal
year (to the extent permitted under clauses (h), (j), (l), (m) and (n) of
Section 10.7) except to the extent such investments are financed with (A)
the Unused Equity Proceeds Amount or (B) the proceeds of any Indebtedness
of Holdings or any Subsidiary.
"EXCESS CASH FLOW APPLICATION DATE": as defined in Section 6.5(c).
"EXCLUDED FOREIGN SUBSIDIARIES": any Foreign Subsidiary in respect of
which either (a) the pledge of all of the Capital Stock of, or any Property
of, such Subsidiary as Collateral or (b) the guaranteeing by such
Subsidiary of the Obligations, would, in the good faith judgment of
Holdings, result in adverse tax consequences to Holdings or Parent. Any
Subsidiary that Guarantees Indebtedness under any Indenture shall not be an
Excluded Foreign Subsidiary.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto.
"EXISTING ISSUING LENDER": The Bank of
New York, as issuer of the
Existing Letters of Credit.
"EXISTING LETTERS OF CREDIT": the letters of credit described on Annex
B.
"EXISTING PARKS": as defined in Section 7.22.
"FACILITY": each of (a) the Tranche B Term Loan Commitments and the
Tranche B Term Loans made thereunder (the "TRANCHE B TERM LOAN FACILITY"),
(b) the Multicurrency Commitments and the extensions of credit made
thereunder (the "MULTICURRENCY FACILITY"), (c) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "REVOLVING
CREDIT FACILITY") and (d) the Optional Term Loan Commitments, if any, and
the Optional Term Loans made thereunder (the "OPTIONAL TERM LOAN
FACILITY").
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"FOREIGN SECURITY DOCUMENTS": the collective reference to the Foreign
Subsidiary Pledge Agreements, as confirmed by the Consent and Confirmation,
and any other Security Documents delivered pursuant to Section 9.6(e).
"FOREIGN SUBSIDIARY": any Subsidiary of Holdings or Parent, as
applicable, that is not a Domestic Subsidiary.
12
"FOREIGN SUBSIDIARY BORROWER": any Foreign Subsidiary of Holdings that
is or becomes a Foreign Subsidiary Borrower on or prior to the Amendment
and Restatement Effective Date, or after the Amendment and Restatement
Effective Date pursuant to Section 13.1(b).
"FOREIGN SUBSIDIARY OPINION": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit L, with such
assumptions, qualifications and deviations therefrom as the Administrative
Agent shall approve (such approval not to be unreasonably withheld).
"FOREIGN SUBSIDIARY PLEDGE AGREEMENTS": the collective reference to
(a) the Pledge Agreements delivered on or before the Amendment and
Restatement Effective Date pledging not more than 65% of the shares of
Capital Stock of Foreign Subsidiaries held by any Domestic Subsidiary and
(b) any Pledge Agreements delivered pursuant to Section 9.6(d).
"FQ1", "FQ2", "FQ3", and "FQ4": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of Holdings, (e.g., FQ4 2002 means the
fourth fiscal quarter of Holdings' 2002 fiscal year, which ends December
31, 2002).
"FUNDED DEBT": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition
of "Indebtedness" in this Section.
"FUNDING OFFICE": with respect to Loans in any currency, the office
specified from time to time by the Administrative Agent as its funding
office for such currency by notice to Holdings and the Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"GENERAL MULTICURRENCY COMMITMENT": as defined in Section 4.5(a).
"GENERAL MULTICURRENCY LENDER": as defined in Section 4.5(a).
"GOVERNMENTAL AUTHORITY": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance
Commissioners) having jurisdiction over the Business or the Property of
Holdings and its Subsidiaries.
"GUARANTEE": a guarantee, an indorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of
any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an
agreement to purchase, sell or lease (as lessee or lessor) Property,
products, materials, supplies or services primarily for the purpose of
enabling a debtor to make payment of such debtor's obligations or an
agreement to assure a creditor against loss, and including, without
limitation, causing a bank or other financial institution to issue a letter
of credit or other similar instrument for the benefit of another Person,
but excluding
13
endorsements for collection or deposit in the ordinary course of business.
The terms "Guarantee" and "Guaranteed" used as verbs have the correlative
meanings.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and Collateral
Agreement, dated as of November 5, 1999, made by Parent, Holdings, the
Primary Borrower and each Subsidiary Guarantor in favor of the
Administrative Agent, a copy of which is attached as Exhibit A, as assumed
by additional Subsidiary Guarantors on or prior to the Amendment and
Restatement Effective Date and as confirmed by the Consent and Confirmation
and as the same has been and may be amended, supplemented or otherwise
modified from time to time.
"GUARANTORS": the collective reference to Parent, Holdings, the
Primary Borrower (in its capacity as a guarantor) and the Subsidiary
Guarantors.
"HAZARDOUS MATERIAL": any chemical or other material or substance
which is now or hereafter prohibited, limited or otherwise regulated in any
way under any Environmental Law.
"HEDGING AGREEMENT": any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"HOLDINGS": as defined in the preamble hereto.
"HOLDINGS SENIOR NOTES": the 8 7/8% Senior Notes due 2006 of Holdings
in the aggregate principal amount of $170,000,000.
"INACTIVE SUBSIDIARY": any Subsidiary of Holdings or Parent, as
applicable, that (a) has aggregate assets with a value not in excess of
$5,000, (b) conducts no Business and (c) does not Guarantee any
Indebtedness under any Indenture.
"INDEBTEDNESS": for any Person, without duplication: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by
loan, the issuance and sale of debt securities or the sale of Property to
another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such Property from such Person); (b) obligations
of such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other than for
borrowed money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are payable
within 180 days (365 days in the case of payables arising out of the
purchase of inventory or Capital Expenditures determined without regard to
the exclusion contained in the definition of Capital Expenditures in this
Section 1.1) of the date the respective goods are delivered or the
respective services are rendered; (c) Indebtedness of others secured by a
Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of
such Person in respect of letters of credit or similar instruments
(including negotiable instruments) issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease
Obligations of such Person; (f) the liquidation value of all redeemable
preferred Capital Stock of such Person to the extent redeemable prior to
the date which is 91 days after the latest of (i) Revolving Credit
Termination Date, (ii) Multicurrency Termination Date and (iii) the
maturity date of the Tranche B Term Loans, and (g) Indebtedness of others
Guaranteed by such Person. The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a general partner
to the extent such Indebtedness is recourse, PROVIDED that if such Person's
liability for such Indebtedness is contractually limited, only such
Person's share thereof shall be so included. Anything herein to the
contrary notwithstanding, the
14
following shall not constitute Indebtedness: (i) obligations under Hedging
Agreements, (ii) obligations with respect to the payment of taxes, fees,
costs and expenses, Capital Expenditures and other payments required to be
made pursuant to the Marine World Agreements, (iii) obligations in respect
of any Indebtedness that has been defeased (either covenant or legal)
pursuant to the terms of the instrument creating or governing such
Indebtedness, (iv) obligations under the Subordinated Indemnity Agreement
or the Partnership Parks Agreements; PROVIDED, that obligations described
in the foregoing clause (iv) shall constitute Indebtedness for purposes of
Section 11(e) and (v) obligations in respect of any Subordinated Parent
Advances.
"INDEMNIFIED LIABILITIES": as defined in Section 13.5.
"INDEMNITEE": as defined in Section 13.5.
"INDENTURES": collectively, (a) the Parent Indentures and (b) any
other indenture pursuant to which Indebtedness of Parent, Holding or the
Primary Borrower may be outstanding at any time, in each case as amended as
permitted by this Agreement.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to xxx at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurocurrency Loan having an Interest Period of three months or shorter, the
last day of such Interest Period, (c) as to any Eurocurrency Loan having an
Interest Period longer than three months, each day that is three months, or
a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Credit Loan or Multicurrency Loan that is a Base Rate Loan and
any Swing Line Loan), the date of any repayment or prepayment made in
respect thereof.
"INTEREST PERIOD": as to any Eurocurrency Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan and ending one, two, three or six
months thereafter, as selected by the relevant Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurocurrency Loan and
ending one, two, three or six months thereafter, as selected by the
relevant Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current
Interest Period with respect thereto; PROVIDED that, all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar
15
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date, the Multicurrency Termination Date
or beyond the date final payment is due on the Tranche B Term Loans,
as the case may be, shall end on the Revolving Credit Termination
Date, the Multicurrency Termination Date or such due date, as
applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period.
"INVESTMENT": for any Person: (a) the acquisition (whether for cash,
Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such
Person), but excluding any such advance, loan or extension of credit having
a stated term not exceeding 180 days arising in connection with the sale of
inventory, supplies or patron services by such Person in the ordinary
course of business, and excluding also any deposit made by such Person in
the ordinary course of business of such Person or as an advance payment in
respect of a Capital Expenditure (to the extent the making of such Capital
Expenditure will not result in a violation of any of the provisions of
Section 10.1 or 10.6); (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed to be
advanced, lent or extended to such Person, other than any Guarantee under
the Partnership Parks Agreements or the Subordinated Indemnity Agreement;
or (d) the entering into of any Hedging Agreement.
"ISSUING LENDER": the Existing Issuing Lender, The Bank of New York
and any other Multicurrency Lender from time to time designated by the
Primary Borrower as an Issuing Lender with the consent of such
Multicurrency Lender and the Administrative Agent.
"JAZZLAND ACQUISITION": the acquisition and the related arrangements
contemplated by (a) that certain Offer Letter, dated May 6, 2002, from
Parent to Jazzland, Inc. and (b) that certain Proposal Letter, dated April
26, 2002, from Parent to the City of New Orleans and NOLA Economic
Development Corporation, with respect to the Jazzland Theme Park and the
land, improvements, personalty and other property and rights associated
therewith, and the documents and agreements relating thereto.
"JOINDER AGREEMENT": each Joinder Agreement, substantially in the form
of Exhibit K, entered into pursuant to Section 13.1(b).
"L/C COMMITMENT": $25,000,000.
"L/C FEE PAYMENT DATE": the last day of each March, June, September
and December and the last day of the Multicurrency Commitment Period.
16
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
that have not then been reimbursed pursuant to Section 5.5.
"L/C PARTICIPANTS": with respect to any Letter of Credit, the
collective reference to all the Multicurrency Lenders other than the
Issuing Lender that issued such Letter of Credit.
"XXXXXX ENTITY": any of Xxxxxx Commercial Paper Inc. or any of its
affiliates (including Syndicated Loan Funding Trust).
"LENDER ADDENDUM": with respect to any Lender, a Lender Addendum,
substantially in the form of Exhibit J, to be executed and delivered by
such Lender on the Amendment and Restatement Effective Date as provided in
Section 13.17.
"LENDERS": as defined in the preamble hereto.
"LETTERS OF CREDIT": as defined in Section 5.1(a).
"LIEN": with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement (other than an operating lease) relating to such Property.
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, the Security Documents, the Consent
and Confirmation, the Applications and the Notes.
"LOAN PARTIES": Parent, Holdings, the Borrowers and each Subsidiary of
Holdings that is a party to a Loan Document.
"MAJORITY FACILITY LENDERS": with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the Tranche B
Term Loans, the Optional Term Loans, the Total Revolving Extensions of
Credit or the Total Multicurrency Extensions of Credit, as the case may be,
outstanding under such Facility (or, (a) in the case of the Revolving
Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments and (b) in the case of the Multicurrency Facility, prior to any
termination of the Multicurrency Commitments, the holders of more than 50%
of the Total Multicurrency Commitments).
"MAJORITY MULTICURRENCY FACILITY LENDERS": the Majority Facility
Lenders in respect of the Multicurrency Facility.
"MAJORITY REVOLVING CREDIT FACILITY LENDERS": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"MARGIN STOCK": "margin stock" within the meaning of Regulations T, U
and X of the Board.
17
"MARINE WORLD AGREEMENTS": collectively, (a) the Parcel Lease dated as
of November 7, 1997 between Marine World Joint Powers Authority
("AUTHORITY"), as landlord, and Park Management Corp. ("TENANT"), as
tenant, a Memorandum of which was recorded in the Xxxxxx County Recorder's
Office on November 10, 1997 in the Official Records at Series No. 97-76697,
as amended by Amendment to Parcel Lease, dated as of May 18, 1999, between
Authority and Tenant, a Memorandum of which was recorded in the Xxxxxx
County Recorder's Office on January 7, 2000 in the Official Records at
Series No. 2000-2096, and by Second Amendment to Parcel Lease dated as of
February 1, 2000, a Memorandum of which was recorded in the Xxxxxx County
Recorder's Office on March 27, 2000 in the Official Records at Series No.
2000-23416, and as is being further amended by Third Amendment to Parcel
Lease; (b) Reciprocal Easement Agreement dated as of November 7, 1997
between Authority and Tenant; (c) Revenue Sharing Agreement dated as of
November 7, 1997 by and among Authority, Tenant and the Redevelopment
Agency of the City of Vallejo ("AGENCY"); (d) Amended and Restated 1997
Management Agreement Relating to Marine World entered into as of December
19, 2001 between the Authority and Tenant; and (e) Purchase Option
Agreement dated as of August 29, 1997 among the City of Vallejo, the
Authority, the Agency and Tenant, together with any and all documents
delivered pursuant thereto or in connection therewith, as the same shall,
subject to Section 10.13, be modified and supplemented and in effect from
time to time.
"MARINE WORLD CONTRIBUTED CAPITAL EXPENDITURES": Capital Expenditures
made by Holdings consisting of items which are useful to the business of
Authority, and are, concurrently with the purchase thereof, contributed by
Holdings to Authority.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
Business, Property, condition (financial or otherwise) or prospects of
Holdings and its Subsidiaries taken as a whole or Parent and its
Subsidiaries taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"MORTGAGE AMENDMENT": as defined in the definition of "Mortgages".
"MORTGAGED PROPERTIES": the Real Properties listed on Schedule 1.1(a),
as to which the Administrative Agent for the benefit of the Lenders has
been granted a Lien pursuant to the Mortgages.
"MORTGAGES": each of the mortgages and deeds of trust encumbering the
Mortgaged Properties made by the Loan Party party thereto in favor of, or
for the benefit of, the Administrative Agent for the benefit of the
Lenders, as amended by the amendments thereto delivered on the Amendment
and Restatement Effective Date (collectively, the "MORTGAGE AMENDMENTS"),
substantially in the form of Exhibit D-1 (with such changes thereto as
shall be reasonably advisable under the law of the jurisdiction in which
each such Mortgage Amendment is to be recorded), together with any other
mortgages and deeds of trust made by any Loan Party in accordance with
Section 9.6(b) in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit D-2
(with such changes thereto as shall be reasonably advisable under the law
of the jurisdiction in which such mortgage or deed of
18
trust is to be recorded), in each case as the same may be amended,
supplemented, substituted or otherwise modified from time to time.
"MULTICURRENCY COMMITMENT": as to any Lender, the obligation of such
Lender, if any, to make Multicurrency Loans and participate in Letters of
Credit, in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Multicurrency Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of
the Total Multicurrency Commitments prior to the Amendment and Restatement
Effective Date is $277,500,000 and from and after the Amendment and
Restatement Effective Date is $100,000,000.
"MULTICURRENCY COMMITMENT PERIOD": the period from and including the
Closing Date to the Multicurrency Termination Date.
"MULTICURRENCY EXTENSIONS OF CREDIT": as to any Multicurrency Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Multicurrency Loans denominated in Dollars made by such
Lender then outstanding, (b) the Dollar Equivalent Amount of all
Multicurrency Loans denominated in euro made by such Lender then
outstanding and (c) such Lender's Multicurrency Percentage of the L/C
Obligations then outstanding.
"MULTICURRENCY FACILITY": as defined in the definition of "Facility"
in this Section 1.1.
"MULTICURRENCY LENDER": each Lender that has a Multicurrency
Commitment or that is the holder of Multicurrency Loans.
"MULTICURRENCY LOANS": as defined in Section 4.1.
"MULTICURRENCY PERCENTAGE": as to any Multicurrency Lender at any
time, the percentage which such Lender's Multicurrency Commitment then
constitutes of the Total Multicurrency Commitments (or, at any time after
the Multicurrency Commitments shall have expired or terminated, the
percentage which the aggregate amount of such Lender's Multicurrency
Extensions of Credit then outstanding constitutes of the amount of the
Total Multicurrency Extensions of Credit then outstanding).
"MULTICURRENCY SUBLIMIT": with respect to all Foreign Subsidiary
Borrowers organized under the laws of Mexico, an aggregate amount of
$40,000,000.
"MULTICURRENCY TERMINATION DATE": the earlier of (a) the final
maturity date of the Tranche B Term Loans in accordance with Section 2.3
(including the proviso thereto) and (b) June 30, 2008.
"MULTIEMPLOYER PLAN": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which contributions have been made by
Parent or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET CASH PROCEEDS": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof received by Holdings or any Subsidiary
in the form of cash and Permitted Investments (including any such proceeds
received in such form by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
19
otherwise, but only as and when received) of such Asset Sale or Recovery
Event, net of attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on, or amount required to be paid
under Capital Lease Obligations relating to, any asset which is the subject
of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred
in connection therewith and net of taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements applicable to the
transactions) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans,
the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith."
"NEW LENDER": as defined in Section 6.18(e).
"NON-EXCLUDED TAXES": as defined in Section 6.13(a).
"NON-GUARANTOR SUBSIDIARY": any Subsidiary that is not a Subsidiary
Guarantor.
"NON-U.S. LENDER": as defined in Section 6.13(d).
"NOTE": any promissory note evidencing any Loan.
"OBLIGATIONS": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans, the Reimbursement Obligations and all other
obligations and liabilities of any Borrower to the Administrative Agent or
to any Lender (or, in the case of Specified Hedge Agreements, any affiliate
of any Lender or any Person that was a Lender or an affiliate of a Lender
at the time of entry into a Specified Hedge Agreement), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, any other Loan Document, the Letters of Credit, any
Specified Hedge Agreement or any other document made, delivered or given by
any Loan Party in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that
are required to be paid by any Borrower pursuant hereto) or otherwise;
PROVIDED, that (a) obligations of any Borrower or any Subsidiary of any
Borrower under any Specified Hedge Agreement shall be secured and
guaranteed pursuant to the Security Documents only to the extent that, and
for so long as, the other Obligations are so secured and guaranteed and (b)
any release of Collateral or Guarantors effected in the manner permitted by
this Agreement shall not require the consent of holders of obligations
under Specified Hedge Agreements.
"OPERATED PROPERTIES": as defined in Section 7.17(a).
"OPTIONAL INCREASE AMENDMENT": an amendment to this Agreement, in form
and substance acceptable to the Primary Borrower, the Administrative Agent
and each Lender providing an Optional Term Loan Commitment or increasing
its Multicurrency Commitment,
20
executed and delivered pursuant to Section 6.18 to establish an Optional
Term Loan Tranche and/or an increase in the Multicurrency Commitments.
"OPTIONAL INCREASE REQUEST": as defined in Section 6.18(a).
"OPTIONAL TERM LOAN COMMITMENT": as to any Optional Term Loan Lender,
the obligation of such Lender, if any, to make an Optional Term Loan to the
Primary Borrower hereunder in a principal amount not to exceed the amount
set forth in the Optional Increase Amendment related thereto.
"OPTIONAL TERM LOAN LENDER": each Lender that has an Optional Term
Loan Commitment or is the holder of an Optional Term Loan.
"OPTIONAL TERM LOAN TRANCHE": as defined in Section 6.18(b).
"OPTIONAL TERM LOANS": as defined in Section 6.18(b).
"OTHER TAXES": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARENT": as defined in the preamble hereto.
"PARENT INDENTURES": collectively, the Indentures dated as of February
11, 2002, February 2, 2001, June 30, 1999 and April 1, 1998, respectively,
between Parent and The Bank of New York, as trustee, in each case as
amended as permitted by this Agreement.
"PARENT PREFERRED STOCK": the 11,500,000 Preferred Income Equity
Redeemable Shares representing interests in the Parent's 7-1/4% Convertible
Preferred Stock.
"PARK": collectively, the Existing Parks and any other amusement or
attraction park acquired by any of Holdings and its Subsidiaries after the
date hereof.
"PARTICIPANT": as defined in Section 13.6(b).
"PARTICIPATING MEMBER STATE": any member state of EMU which has the
euro as its lawful currency.
"PARTNERSHIP PARKS AGREEMENTS": (a) the Overall Agreement, dated as of
February 15, 1997, among Six Flags Fund, Ltd. (L.P.), Xxxxxx Family Trust,
SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia, Ltd., SFOG II,
Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG Acquisition B,
L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of Georgia, Inc.,
the Primary Borrower and Six Flags Entertainment Corporation and the
Related Agreements (as defined therein) and (b) the Overall Agreement dated
as of November 24, 1997 among Six Flags Over Texas Fund, Ltd., Flags'
Directors, L.L.C., FD-II, L.L.C., Texas Flags, Ltd., SFOT Employee, Inc.,
SFOT Acquisition I, Inc., SFOT Acquisition II, Inc., Six Flags Over Texas,
Inc., the Primary Borrower and Six Flags Entertainment Corporation, as
amended by the Agreement dated as of December 6, 1999 between and among the
foregoing parties and Six Flags Fund II, Ltd., and the Related Agreements
(as defined therein), in each case, as the same may be
21
modified or amended at any time from time to time, provided such
modification or amendment does not violate Section 10.13.
"PAYMENT OFFICE": with respect to payments in any currency, the office
specified from time to time by the Administrative Agent as its payment
office for such currency by notice to the Primary Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"PERIL": as defined in Section 9.4.
"PERMITTED INVESTMENTS": (a) direct obligations of the United States
of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case maturing, except in the case of securities subject
to repurchase agreements referred to in clause (d) below, not more than one
year from the date of acquisition thereof; (b) certificates of deposit,
time deposits and money market deposit accounts issued by any bank or trust
company organized under the laws of the United States of America, any state
thereof or any other country which is a member of the Organization for
Economic Cooperation and Development, in each case having capital, surplus
and undivided profits of at least $500,000,000, maturing not more than one
year from the date of acquisition thereof; (c) securities either rated or
issued by corporations that have a rating of, A-1 or better or P-1 by
Standard & Poor's Ratings Services, or Xxxxx'x Investors Services, Inc.,
respectively, maturing, except in the case of securities subject to
repurchase agreements referred to in clause (d) below, not more than one
year from the date of acquisition thereof; and (d) fully collateralized
repurchase agreements with a term of not more than one year for securities
described in clause (a) or (c) above and entered into with either financial
institutions satisfying the criteria described in clause (b) above or
primary dealers in U.S. Government securities; in each case so long as the
same (x) provide for the payment of principal and interest (and not
principal alone or interest alone) and (y) are not subject to any
contingency regarding the payment of principal or interest.
"PERMITTED LIENS": as defined in Section 10.3.
"PERSON": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"PLAN": an employee benefit plan (within the meaning of Section 3(3)
of ERISA) established or maintained by Parent or any ERISA Affiliate and
that is covered by ERISA, other than a Multiemployer Plan.
"PREPAYMENT OPTION NOTICE": as defined in Section 6.11(d).
"PRICING GRID": the pricing grid attached hereto as Annex A.
"PRIMARY BORROWER": as defined in the preamble hereto.
"PRO FORMA BALANCE SHEET": as defined in Section 7.1(a).
22
"PROPERTY": any right or interest in or to property of any kind
whatsoever, whether Real Property, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"PURCHASE MONEY INDEBTEDNESS": (a) Indebtedness consisting of the
deferred purchase price of Property, conditional sale obligations under any
title retention agreement and other purchase money obligations, in each
case where the maturity of such Indebtedness does not exceed the
anticipated useful life of the Property being financed, and (b)
Indebtedness incurred to finance the acquisition by Holdings or a
Subsidiary of such asset, including additions and improvements; PROVIDED,
HOWEVER, that any Lien arising in connection with any such Indebtedness
shall be limited to the specified asset being financed or, in the case of
Real Property, the Real Property on which such asset is attached; and
PROVIDED FURTHER, that such Indebtedness is incurred within 180 days after
such acquisition, addition or improvement by Holdings or a Subsidiary of
such asset.
"PURCHASE PRICE": with respect to any Acquisition, the sum (without
duplication) of (a) the amount of cash paid by Holdings and its
Subsidiaries in connection with such Acquisition, (b) the sum of (i) the
value (as determined for purposes of such Acquisition in accordance with
the applicable acquisition agreement) of all Capital Stock of Holdings or
any of its Subsidiaries issued or given as consideration in connection with
such Acquisition and (ii) the Qualified Net Cash Equity Proceeds applied to
finance such Acquisition, (c) the principal amount (or, if less, the
accreted value) at the time of such Acquisition of all Indebtedness
incurred, assumed or acquired by Holdings and its Subsidiaries in
connection with such Acquisition, (d) all additional purchase price amounts
in connection with such Acquisition in the form of earnouts, deferred
purchase price and other contingent obligations that are required to be
recorded as a liability on the balance sheet of Holdings and its
Subsidiaries in accordance with GAAP, Regulation S-X under the Securities
Act of 1933, as amended, or any other rule or regulation of the United
States Securities and Exchange Commission, (e) all amounts paid by Holdings
and its Subsidiaries in respect of covenants not to compete, consulting
agreements and other affiliated contracts in connection with such
Acquisition, and (f) the aggregate fair market value of all other
consideration given by Holdings and its Subsidiaries in connection with
such Acquisition.
"QUALIFIED NET CASH EQUITY PROCEEDS": the Net Cash Proceeds of any
offering of Capital Stock of Holdings or any of its Subsidiaries so long as
(a) such offering was made in express contemplation of an Acquisition, (b)
such Capital Stock is not mandatorily redeemable and (c) such Acquisition
is consummated within 90 days after receipt by Holdings or such Subsidiary
of such Net Cash Proceeds.
"REAL PROPERTIES": all real property, including the improvements
thereon, owned by, or leased by, Parent, Holdings or its Subsidiaries.
"RECOVERY EVENT": any settlement of or payment in excess of $1,000,000
in respect of any Property or casualty insurance claim or any condemnation
proceeding relating to any Property of Holdings or any of its Subsidiaries.
"REFERENCE LENDER": Deutsche Bank, New York Office.
"REFUNDED SWING LINE LOANS": as defined in Section 3.4.
"REFUNDING DATE": as defined in Section 3.4.
23
"REGISTER": as defined in Section 13.6(d).
"REGULATION H": Regulation H of the Board as in effect from time to
time.
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REIMBURSEMENT OBLIGATION": the obligation of the relevant Borrower to
reimburse each Issuing Lender pursuant to Section 5.5 for amounts drawn
under Letters of Credit issued by such Issuing Lender for the account of
such Borrower.
"REINVESTMENT DEFERRED AMOUNT": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by Holdings or any of its
Subsidiaries in connection therewith that, as a result of the delivery of a
Reinvestment Notice, are not applied to repay the Tranche B Term Loans,
reduce the Multicurrency Commitments pursuant to Section 6.5(b) or repay
the Multicurrency Loans pursuant to Section 6.11(d).
"REINVESTMENT EVENT": any Asset Sale or Recovery Event in respect of
which Holdings or the Primary Borrower has delivered a Reinvestment Notice.
"REINVESTMENT NOTICE": a written notice executed by a Responsible
Officer of Holdings or the Primary Borrower stating that no Default or
Event of Default has occurred and is continuing and that Holdings or the
Primary Borrower (directly or indirectly through a Subsidiary) intends and
expects to use all or a specified portion of the Net Cash Proceeds of an
Asset Sale or Recovery Event to acquire, restore or reconstruct assets
useful in its business or reimburse amounts spent in anticipation of the
receipt of such Net Cash Proceeds.
"REINVESTMENT PREPAYMENT AMOUNT": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire,
restore, or reconstruct assets useful in business of Holdings and its
Subsidiaries.
"REINVESTMENT PREPAYMENT DATE": with respect to any Reinvestment
Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which Holdings or the Primary
Borrower shall have determined not to, or shall have otherwise ceased to,
acquire, restore or reconstruct assets useful in the business of Holdings
and its Subsidiaries with all or any portion of the relevant Reinvestment
Deferred Amount.
"RELATED DOLLAR AMOUNT": at any time, an amount equal to the product
of (a) a fraction, the numerator of which is the aggregate Dollar
Multicurrency Commitments of all Dollar Multicurrency Lenders and the
denominator of which is the aggregate Multicurrency Commitments of all
Multicurrency Lenders, MULTIPLIED by (b) the Dollar Equivalent Amount of
all Multicurrency Loans made by all Multicurrency Lenders, determined at
the Spot Exchange Rate used for determining the amount of the Available
Multicurrency Commitments as of the beginning of the Interest Period in
respect of which the determination of the Related Dollar Amount is made.
"RELATED FUND": with respect to any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans and is advised or
managed by the same investment advisor as such Lender or by an affiliate of
such investment advisor.
24
"RELEASE": any release, threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata that
violates or creates any liability under any Environmental Law.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a Single
Employer Plan, as to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event (PROVIDED that a failure of any Single
Employer Plan to meet the minimum funding standard of Section 412 of the
Code or Section 302 of ERISA, including, without limitation, the failure to
make on or before its due date a required installment under Section 412(m)
of the Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d)
of the Code).
"REQUIRED LENDERS": at any time, the holders of more than 50% of (a)
until the Amendment and Restatement Effective Date, the sum of (i) the
aggregate unpaid principal amount of the Tranche B Term Loans then
outstanding and (ii) the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Tranche B Term Loans then
outstanding, (ii) the aggregate unpaid principal amount of the Optional
Term Loans then outstanding, (iii) the Total Revolving Credit Commitments
then in effect or, if the Revolving Credit Commitments have been
terminated, the Total Revolving Extensions of Credit then outstanding and
(iv) the Total Multicurrency Commitments then in effect or, if the
Multicurrency Commitments have been terminated, the Total Multicurrency
Extensions of Credit then outstanding.
"REQUIRED PREPAYMENT LENDERS": the Majority Facility Lenders in
respect of the Tranche B Term Loan Facility and the Multicurrency Facility.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"RESPONSIBLE OFFICER": as to any Person, the chief executive officer,
president or chief financial officer of such Person, but in any event, with
respect to financial matters, the chief financial officer of such Person.
"RESTRICTED PAYMENT": (a) dividends (in cash, Property or obligations)
on, or other payments or distributions on account of, or the setting apart
of money for a sinking or other analogous fund for, or the purchase,
redemption, retirement or other acquisition of, any shares of any Capital
Stock of Holdings or of any warrants, options or other rights to acquire
the same (or to make any payments to any Person (except "earn-out" payments
or similar payments in connection with an Acquisition or pursuant to any
agreement entered into in connection therewith, in each case where such
obligation does not constitute Indebtedness) such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of Holdings or any of its Subsidiaries), but
excluding dividends payable solely in
25
shares of common stock of Holdings and (b) in the case of Holdings or any
of its Subsidiaries, payments in respect of Subordinated Parent Advances.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in
Swing Line Loans in an aggregate principal amount not to exceed the amount
set forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of
the Total Revolving Credit Commitments is $300,000,000.
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"REVOLVING CREDIT FACILITY": as defined in the definition of
"Facility" in this Section 1.1
"REVOLVING CREDIT LENDER": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
"REVOLVING CREDIT LOANS": as defined in Section 3.1.
"REVOLVING CREDIT PERCENTAGE": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the aggregate amount of such Lender's Revolving
Extensions of Credit then outstanding constitutes of the amount of the
Total Revolving Extensions of Credit then outstanding).
"REVOLVING CREDIT TERMINATION DATE": June 30, 2008.
"REVOLVING EXTENSIONS OF CREDIT": as to any Revolving Credit Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount
of all Revolving Credit Loans made by such Lender then outstanding and (b)
such Lender's Revolving Credit Percentage of the aggregate principal amount
of Swing Line Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous federal Governmental Authority).
"SECURITY DOCUMENTS": the collective reference to the Guarantee and
Collateral Agreement (and all assumptions thereof), the Mortgages and
Mortgage Amendments and all other security documents which shall have been
delivered on or prior to the Amendment and Restatement Effective Date, or
are hereafter delivered to the Administrative Agent granting a Lien on any
Property of any Person to secure the obligations and liabilities of any
Loan Party under any Loan Document, as the same have been, and on and after
the Amendment and Restatement Effective Date shall be modified, amended or
supplemented in accordance herewith.
"SHARED SERVICES AGREEMENT": the Shared Services Agreement, dated as
of April 1, 1998, among Parent, Holdings and the Primary Borrower, as
amended by that certain Amendment to Shared Services Agreement dated as of
June 30, 1999 among Parent, Holdings, the Primary
26
Borrower and PP Data Services Inc., a Subsidiary of Holdings, and as the
same may be further amended in a manner not materially adverse to the
interests of the Lenders.
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"SOLVENT": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the liability
of such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured and (iii) assets shall include insurance coverage and/or
indemnification available with respect to any liability.
"SPANISH WB AGREEMENTS": the joint venture and related arrangements
assumed or entered into pursuant to the October 6, 1999 Assignment and
Contribution Agreement between Parent and Warner Bros. International
Recreation Enterprises ("WB"), a division of Time Warner Entertainment
Company L.P. ("TW"), including, without limitation, the Design and
Development Management Agreement dated as of June 10, 1999 between WB and
Parque Tematico de Madrid, S.A. ("PTM"), the Management Agreement dated as
of June 10, 1999 between WB and PTM, the Operating Agreement of MWM
Management LLC dated as of November 16, 1999 between WB and MWM Holdings
Inc., the Intellectual Property License Agreement dated as of June 10, 1999
among WB, PTM and TW and the letter agreement dated October 7, 1999 from
WB, Parent and Time Warner Entertainment Company L.P. to PTM and the other
parties thereto, with respect to the development and operation of a movie
related theme park, water park and other leisure facilities with PTM in the
municipality of San Xxxxxx de la Xxxx on the outskirts of Madrid, Spain and
the documents and agreements relating thereto, as said Assignment and
Contribution Agreement and related documents and agreements are now or
hereafter amended.
"SPECIFIED HEDGE AGREEMENT": any Hedging Agreement entered into by (a)
Holdings or any of its Subsidiaries and (b) any Person as counterparty
that, at the time such Hedging Agreement is entered into, is a Lender or an
affiliate thereof.
"SPOT EXCHANGE RATE": with respect to any exchange of euro for
Dollars, at any date of determination thereof, the spot rate of exchange in
London at the opening of business that appears on the display page
applicable to euro on the Reuters System (or such other page as may replace
such page on such service for the purpose of displaying the spot rate of
exchange in London) for the conversion of euro into Dollars; PROVIDED that
if there shall at any time no longer exist such a page on such service, the
spot rate of exchange shall be determined by reference to another similar
rate publishing service selected by the Administrative Agent and if no such
similar rate publishing service is available, by reference to the published
rate of the Reference Lender in effect at such date for similar commercial
transactions.
27
"SUBORDINATED INDEMNITY AGREEMENT": the Subordinated Indemnity
Agreement, dated as of April 1, 1998, among Parent, GP Holdings Inc., Time
Warner Inc., Time Warner Entertainment Company, L.P., TW-SPV Co., Holdings,
the Primary Borrower, SFOG II, Inc. and SFT Holdings, Inc., as the same has
been amended on or prior to the Amendment and Restatement Effective Date,
and as the same may be further amended from time to time in a manner not
materially adverse to the interests of the Lenders.
"SUBORDINATED PARENT ADVANCES": unsecured advances from Parent to
Holdings subordinated on the terms set forth on Exhibit O, subject to any
immaterial changes thereto that are reasonably acceptable to the
Administrative Agent.
"SUBSIDIARY": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership, limited liability company or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of Holdings, except that such reference shall
not include the joint venture established pursuant to the Spanish WB
Agreements or any Inactive Subsidiary.
"SUBSIDIARY GUARANTOR": each Subsidiary of Holdings other than (a) the
Primary Borrower, (b) any Excluded Foreign Subsidiary, (c) Flags Beverages,
Inc., Fiesta Texas Hospitality LLC, Spring Beverage Holding Corp., Spring
Beverages, Inc. and any other Subsidiary whose only material asset is a
liquor license and (d) any Inactive Subsidiary.
"SWING LINE COMMITMENT": the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 3.3 in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000.
"SWING LINE LENDER": Xxxxxx Commercial Paper Inc., in its capacity as
the lender of Swing Line Loans.
"SWING LINE LOANS": as defined in Section 3.3.
"SWING LINE PARTICIPATION AMOUNT": as defined in Section 3.4.
"SYNDICATION AGENTS": as defined in the preamble hereto.
"TARGET OPERATING DAY": any day that is not (a) a Saturday or Sunday,
(b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any
successor settlement system) is not operating (as determined by the
Administrative Agent).
"TAX SHARING AGREEMENT": that certain Tax Sharing Agreement, effective
as of January 1, 1999 and as amended on or prior to the Amendment and
Restatement Effective Date, among Parent, Holdings, and those Subsidiaries
which are parties thereto, as the same may be further amended in a manner
not materially adverse to the interests of the Lenders.
28
"TOTAL MULTICURRENCY COMMITMENTS": at any time, the aggregate amount
of the Multicurrency Commitments then in effect.
"TOTAL MULTICURRENCY EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Multicurrency Extensions of Credit of the Multicurrency
Lenders outstanding at such time.
"TOTAL REVOLVING CREDIT COMMITMENTS": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"TRANCHE B TERM LOAN": the collective reference to (a) the term loans
made on the Closing Date pursuant to Section 2.1 of the Existing Credit
Agreement (of which an aggregate principal amount of $595,500,000 is
outstanding on the Amendment and Restatement Effective Date) and (b) the
term loans made on the Amendment and Restatement Effective Date pursuant to
Section 2.1 of this Agreement.
"TRANCHE B TERM LOAN COMMITMENT": as to any Lender, the obligation of
such Lender, if any, to make a Tranche B Term Loan to the Primary Borrower
hereunder in a principal amount not to exceed the amount set forth under
the heading "Tranche B Term Loan Commitment" opposite such Lender's name on
Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case
may be, in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Tranche
B Term Loan Commitments on the Amendment and Restatement Effective Date is
$4,500,000.
"TRANCHE B TERM LOAN FACILITY": as defined in the definition of
"Facility" in this Section 1.1.
"TRANCHE B TERM LOAN LENDER": each Lender that has a Tranche B Term
Loan Commitment or is the holder of a Tranche B Term Loan.
"TRANCHE B TERM LOAN PERCENTAGE": as to any Lender at any time, the
percentage which such Lender's Tranche B Term Loan Commitment then
constitutes of the sum of (a) the Tranche B Term Loans then outstanding and
(b) the aggregate Tranche B Term Loan Commitments (or, at any time after
the Amendment and Restatement Effective Date, the percentage which the
principal amount of such Lender's Tranche B Term Loan then outstanding
constitutes of the aggregate principal amount of all Tranche B Term Loans
then outstanding).
"TRANSACTIONS": the execution, delivery and performance by each Loan
Party of the Loan Documents to which it is or is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder.
"TRANSFEREE": as defined in Section 13.14.
"TREATY ON EUROPEAN UNION": the Treaty of Rome of March 25, 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Loan.
29
"UNUSED EQUITY PROCEEDS AMOUNT": on any date, the difference of (a)
the amount of cash equity contributed by Parent to Holdings during the
period between the Amendment and Restatement Effective Date and such date,
MINUS (b) the amount expended by Holdings and its Subsidiaries during such
period in respect of (i) expenditures which would otherwise be Capital
Expenditures but for the exclusion set forth in clause (b)(iv) of the
definition thereof in this Section 1.1 and (ii) Investments made pursuant
to Section 10.4(e)(iii) (other than any such Investments made with existing
cash, cash flow generated by operations and/or the proceeds of Loans
hereunder to the extent permitted under this Agreement).
"WHOLLY OWNED SUBSIDIARY": with respect to any Person, any
corporation, partnership, limited liability company or other entity of
which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares or equity
interests held by foreign nationals, in each case to the extent mandated by
applicable law) are directly or indirectly owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person.
"WHOLLY OWNED SUBSIDIARY GUARANTOR": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of Holdings.
1.2. OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Parent, Holdings and its Subsidiaries not defined
in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) Except as specifically provided herein, the meanings given to
terms defined herein shall be equally applicable to both the singular and plural
forms of such terms.
(e) Each reference to the "Credit Agreement" in any Loan Document
shall be deemed to be a reference to this Amended and Restated Credit Agreement,
as amended, restated and supplemented from time to time after the date hereof.
SECTION 2. AMOUNT AND TERMS OF TRANCHE B
TERM LOAN COMMITMENTS
2.1. TRANCHE B TERM LOAN COMMITMENTS. Subject to the terms and
conditions hereof, the Tranche B Term Loan Lenders severally agree to make
Tranche B Term Loans to the Primary Borrower on the Amendment and Restatement
Effective Date in an amount for each Tranche B Term Loan Lender not to exceed
the amount of the Tranche B Term Loan Commitment of such Lender. The Tranche B
Term Loans may from time to time be Eurocurrency Loans or Base Rate Loans, as
determined by the Primary Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 6.6. All Tranche B Term Loans outstanding under
the Existing Credit Agreement on the Amendment and
30
Restatement Effective Date shall remain outstanding to the Primary Borrower in
Dollars hereunder on the terms and conditions set forth herein. Tranche B Term
Loans made under the Existing Credit Agreement prior to the Amendment and
Restatement Effective Date and outstanding on such date shall constitute Tranche
B Term Loans hereunder.
2.2. PROCEDURE FOR TRANCHE B TERM LOAN BORROWING. The Primary Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
one Business Day prior to the anticipated Amendment and Restatement Effective
Date) requesting that the Tranche B Term Loan Lenders make the Tranche B Term
Loans on the Amendment and Restatement Effective Date and specifying the amount
to be borrowed. The Tranche B Term Loans shall initially be Base Rate Loans.
Upon receipt of such notice the Administrative Agent shall promptly notify each
Tranche B Term Loan Lender thereof. Not later than 12:00 Noon, New York City
time, on the Amendment and Restatement Effective Date each Tranche B Term Loan
Lender shall make available to the Administrative Agent at the relevant Funding
Office an amount in immediately available funds equal to the Tranche B Term Loan
to be made by such Lender. The Administrative Agent shall make available to the
Primary Borrower the aggregate of the amounts made available to the
Administrative Agent by the Tranche B Term Loan Lenders, in like funds as
received by the Administrative Agent.
2.3. REPAYMENT OF TRANCHE B TERM LOANS. The Tranche B Term Loan of
each Tranche B Term Loan Lender shall mature in 20 consecutive quarterly
installments, commencing on September 30, 2004, each of which shall be in an
amount equal to such Lender's Tranche B Term Loan Percentage multiplied by the
percentage set forth below opposite such installment of the aggregate principal
amount of Tranche B Term Loans made on the Amendment and Restatement Effective
Date:
Installment Percentage
------------------ ----------
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 .25%
December 31, 2007 .25%
March 31, 2008 .25%
June 30, 2008 .25%
September 30, 2008 24.0%
December 31, 2008 24.0%
March 31, 2009 24.0%
June 30, 2009 24.0%;
PROVIDED that, notwithstanding the foregoing, all outstanding Tranche B Term
Loans, together with interest thereon, shall be due and payable (a) on December
31, 2006 in the event that Parent's 9-3/4% Senior Notes due 2007 or Parent's 10%
Senior Discount Notes due 2008 are not repaid or refinanced in full prior to
December 31, 2006, (b) on August 1, 2008 in the event that Parent's 9-1/2%
Senior Notes
31
due 2009 are not repaid or refinanced in full prior to August 1, 2008 or (c) on
December 31, 2008 in the event that the Parent Preferred Stock is not redeemed
or converted into common stock of Parent prior to December 31, 2008; PROVIDED,
FURTHER, that any such refinancing Indebtedness shall not (i) impose on Parent
and its Subsidiaries covenants or events of default that, in the good faith
judgment of Parent, are in the aggregate materially more restrictive on Parent
and its subsidiaries than those applicable under the Parent Indenture dated as
of February 11, 2002, (ii) require any scheduled payments of principal thereon
prior to the date that is one year after the final maturity of the Tranche B
Term Loans, (iii) be Guaranteed by any Loan Party or (iv) be secured by any
Property of any Loan Party.
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS AND SWING LINE COMMITMENT
3.1. REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans denominated in Dollars ("REVOLVING CREDIT LOANS") to the
Primary Borrower from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding for each Revolving
Credit Lender which, when added to such Lender's Revolving Credit Percentage of
the aggregate principal amount of the Swing Line Loans then outstanding, does
not exceed the amount of such Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Primary Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof. The Revolving Credit Loans may from time to time be Eurocurrency Loans
or Base Rate Loans, as determined by the Primary Borrower and notified to the
Administrative Agent in accordance with Sections 3.2 and 6.6, PROVIDED that no
Revolving Credit Loan shall be made as a Eurocurrency Loan after the day that is
one month prior to the Revolving Credit Termination Date.
(b) The Primary Borrower shall repay all outstanding Revolving Credit
Loans on or before the Revolving Credit Termination Date.
(c) Revolving Credit Loans made under (and as defined in) the Existing
Credit Agreement prior to the Amendment and Restatement Effective Date and
outstanding on such date shall constitute Revolving Credit Loans hereunder.
3.2. PROCEDURE FOR REVOLVING CREDIT BORROWING. The Primary Borrower
may borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, PROVIDED that the Primary Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurocurrency
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans), specifying (i) the amount and Type of Revolving Credit
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurocurrency Loans, the length of the initial Interest Period therefor. Any
Revolving Credit Loans made on the Amendment and Restatement Effective Date
shall initially be Base Rate Loans. Subject to Section 6.6, any Revolving Credit
Loan made prior to the Amendment and Restatement Effective Date shall continue
as the same Type of Loan after the Amendment and Restatement Effective Date.
Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or
a whole multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurocurrency Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; PROVIDED, that the Swing Line Lender may request, on behalf of the
Primary Borrower, borrowings of Base Rate Loans under the Revolving Credit
Commitments in other amounts pursuant to
32
Section 3.4. Upon receipt of any such notice from the Primary Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make its Revolving Credit Percentage of the
amount of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of the Primary Borrower at the relevant
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Primary Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Primary
Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.
3.3. SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees that, during the Revolving Credit
Commitment Period, it will make available to the Primary Borrower in the form of
swing line loans denominated in Dollars ("SWING LINE LOANS") a portion of the
credit otherwise available to the Primary Borrower under the Revolving Credit
Commitments; PROVIDED that (i) the aggregate principal amount of Swing Line
Loans outstanding at any time shall not exceed the Swing Line Commitment then in
effect (notwithstanding that the Swing Line Loans outstanding at any time, when
aggregated with the Swing Line Lender's other outstanding Revolving Credit Loans
hereunder, may exceed the Swing Line Commitment then in effect or such Swing
Line Lender's Revolving Credit Commitment then in effect) and (ii) the Primary
Borrower shall not request, and the Swing Line Lender shall not make, any Swing
Line Loan if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. During the Revolving Credit Commitment Period, the Primary Borrower
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line Loans shall be Base
Rate Loans only.
(b) The Primary Borrower shall repay all outstanding Swing Line Loans
on or before the Revolving Credit Termination Date.
3.4. PROCEDURE FOR SWING LINE BORROWING; REFUNDING OF SWING LINE
LOANS. (a) The Primary Borrower may borrow under the Swing Line Commitment on
any Business Day during the Revolving Credit Commitment Period, PROVIDED, such
Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date. Each borrowing under the Swing Line Commitment shall be in an
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not
later than 3:00 P.M., New York City time, on the Borrowing Date specified in the
borrowing notice in respect of any Swing Line Loan, the Swing Line Lender shall
make available to the Administrative Agent at the relevant Funding Office an
amount in immediately available funds equal to the amount of such Swing Line
Loan. The Administrative Agent shall make the proceeds of such Swing Line Loan
available to the Primary Borrower on such Borrowing Date in like funds as
received by the Administrative Agent.
(b) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Primary Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan to the
Primary Borrower, in an amount equal to such Revolving Credit Lender's Revolving
Credit Percentage of the aggregate amount of the Swing Line Loans (the "REFUNDED
SWING LINE LOANS") outstanding on the date of such notice, to repay the Swing
Line Lender. Each Revolving Credit Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at the relevant
Funding Office in immediately available funds, not later than 10:00 A.M., New
York City time, one Business Day after the date of such notice. The proceeds of
such Revolving Credit Loans shall be made immediately available by the
Administrative
33
Agent to the Swing Line Lender for application by the Swing Line Lender to the
repayment of the Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have otherwise
been made pursuant to Section 3.4(b), one of the events described in Section
11(g), (h) or (i) shall have occurred and be continuing with respect to the
Primary Borrower, or if for any other reason, as determined by the Swing Line
Lender in its sole discretion, Revolving Credit Loans may not be made as
contemplated by Section 3.4(b), each Revolving Credit Lender shall, on the date
such Revolving Credit Loan was to have been made pursuant to the notice referred
to in Section 3.4(b) (the "REFUNDING DATE"), purchase for cash an undivided
participating interest in the then outstanding Swing Line Loans by paying to the
Swing Line Lender an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to (i)
such Revolving Credit Lender's Revolving Credit Percentage times (ii) the sum of
the aggregate principal amount of Swing Line Loans then outstanding which were
to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's Swing Line Participation Amount,
the Swing Line Lender receives any payment on account of the Swing Line Loans,
the Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participating interest
was outstanding and funded and, in the case of principal and interest payments,
to reflect such Lender's PRO RATA portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); PROVIDED, HOWEVER, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Revolving
Credit Loans referred to in Section 3.4(b) and to purchase participating
interests pursuant to Section 3.4(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender or any Borrower may have against the Swing Line Lender,
any Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 8; (iii) any adverse change in the
condition (financial or otherwise) of Parent, Holdings or any Borrower; (iv) any
breach of this Agreement or any other Loan Document by Parent, Holdings or any
Borrower, any other Loan Party or any other Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS
4.1. MULTICURRENCY COMMITMENTS. (a) Subject to the terms and
conditions hereof, the Multicurrency Lenders severally agree to make revolving
credit loans denominated in Dollars or euro (at the option of the relevant
Borrower) ("MULTICURRENCY LOANS") to the Primary Borrower or any Foreign
Subsidiary Borrower from time to time during the Multicurrency Commitment
Period; PROVIDED, that (i) after giving effect to the Multicurrency Loans made
on any Borrowing Date, the Available Multicurrency Commitment shall not be less
than zero and (ii) no Multicurrency Loans shall be made to any Foreign
Subsidiary Borrower if, after giving effect thereto, the amount of the
Multicurrency Extensions of Credit outstanding to such Foreign Subsidiary
Borrower would exceed the Multicurrency Sublimit of such Foreign Subsidiary
Borrower, if any. During the Multicurrency Commitment Period the Borrowers may
use the Multicurrency Commitments by borrowing, prepaying the Multicurrency
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Multicurrency Loans may from time to time be Eurocurrency
Loans or (in the case only of Multicurrency Loans denominated
34
in Dollars) Base Rate Loans, as determined by the relevant Borrower and notified
to the Administrative Agent in accordance with Sections 4.2 and 6.6; PROVIDED
that no Multicurrency Loan shall be made as a Eurocurrency Loan after the day
that is one month prior to the Multicurrency Termination Date.
(b) Multicurrency Loans made under (and as defined in) the Existing
Credit Agreement prior to the Amendment and Restatement Effective Date and
outstanding on such date shall constitute Multicurrency Loans hereunder.
(c) The Primary Borrower shall (and shall cause the other relevant
Borrowers to) repay all outstanding Multicurrency Loans on or prior to the
Multicurrency Termination Date.
4.2. PROCEDURE FOR MULTICURRENCY BORROWING. Any Borrower may borrow
under the Multicurrency Commitments on any Business Day during the Multicurrency
Commitment Period, PROVIDED that the relevant Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans,
or (b) one Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans), specifying (i) the amount, Type and currency of the
Multicurrency Loans to be borrowed, (ii) the requested Borrowing Date and (iii)
in the case of Eurocurrency Loans, the length of the initial Interest Period
therefor. Any Multicurrency Loans made on the Amendment and Restatement
Effective Date in Dollars shall initially be Base Rate Loans and no
Multicurrency Loans may be made in euro prior to the date which is three
Business Days following the Amendment and Restatement Effective Date. Subject to
Section 6.6, any Multicurrency Loan made prior to the Amendment and Restatement
Effective Date shall continue as the same Type of Loan after the Amendment and
Restatement Effective Date. Each borrowing of Multicurrency Loans under the
Multicurrency Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Multicurrency Commitments are less than $1,000,000, such lesser
amount), (y) in the case of Eurocurrency Loans denominated in Dollars,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (z) in the
case of Eurocurrency Loans denominated in euro, (euro)5,000,000 or a whole
multiple of (euro)1,000,000 in excess thereof. Upon receipt of any such notice
from a Borrower, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. Each Multicurrency Lender will make its
Multicurrency Percentage of the amount of each borrowing of Multicurrency Credit
Loans available to the Administrative Agent for the account of the relevant
Borrower at the relevant Funding Office prior to 12:00 Noon, New York City time
(in the case of Multicurrency Loans denominated in Dollars), or prior to 12:00
Noon, Frankfurt time (in the case of Multicurrency Loans denominated in euro),
on the Borrowing Date requested by the relevant Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the relevant Borrower by the Administrative Agent in like funds as
received by the Administrative Agent.
4.3. AUTOMATIC REDUCTION OF MULTICURRENCY COMMITMENT. The Total
Multicurrency Commitments shall be automatically reduced in 15 consecutive
quarterly installments, commencing on December 31, 2004, each of which shall be
in an amount equal to the percentage set forth below opposite such installment
of the initial amount of the Total Multicurrency Commitments:
INSTALLMENT PERCENTAGE
------------------ ----------
December 31, 2004 2.50%
March 31, 2005 2.50%
June 30, 2005 2.50%
September 30, 2005 2.50%
December 31, 2005 2.50%
March 31, 2006 5.00%
35
June 30, 2006 5.00%
September 30, 2006 5.00%
December 31, 2006 5.00%
March 31, 2007 7.50%
June 30, 2007 7.50%
September 30, 2007 7.50%
December 31, 2007 7.50%
March 31, 2008 18.75%
Multicurrency Termination Date 18.75%
Any such reduction of the Multicurrency Commitments shall be accompanied by
prepayment of the Multicurrency Loans to the extent, if any, that the Total
Multicurrency Extensions of Credit exceed the amount of the Total Multicurrency
Credit Commitments as so reduced, PROVIDED that if the aggregate principal
amount of Multicurrency Loans then outstanding is less than the amount of such
excess (because L/C Obligations constitute a portion thereof), the relevant
Borrower shall, to the extent of the balance of such excess, replace outstanding
Letters of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment of Multicurrency Loans pursuant to this Section shall be made,
first, to Base Rate Loans and, second, to Eurocurrency Loans. Each prepayment of
the Multicurrency Loans under this Section (except in the case of Multicurrency
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
4.4. CERTAIN PREPAYMENTS. If, on the date on which the interest rate
is to be determined for any Interest Period in respect of a Eurocurrency Loan
under the Multicurrency Facility, the amount of the Total Multicurrency
Extensions of Credit exceeds the Total Multicurrency Commitments, the Primary
Borrower shall, or shall cause the relevant Borrower to, on the first day of
such Interest Period, prepay outstanding Multicurrency Loans in an amount so
that after giving effect to any such prepayments, the amount of the Total
Multicurrency Extensions of Credit does not exceed the Total Multicurrency
Commitments.
4.5. CERTAIN ADDITIONAL PROVISIONS RELATING TO MULTICURRENCY LOANS.
(a) Each Multicurrency Lender has been or will be designated as either a
"General Multicurrency Lender" or a "Dollar Multicurrency Lender" in Schedule 1
of the Lender Addendum delivered by such Multicurrency Lender on the Amendment
and Restatement Effective Date or, as the case may be, in Schedule 1 to the
Assignment and Acceptance pursuant to which such Multicurrency Lender acquires
its Multicurrency Commitment; and the Multicurrency Commitment of each such
Multicurrency Lender shall be deemed to be a "General Multicurrency Commitment"
or a "Dollar Multicurrency Commitment", respectively. Multicurrency Loans
denominated in euro will be made only by General Multicurrency Lenders.
Notwithstanding any provision of this Agreement to the contrary, all
Multicurrency Loans made by Dollar Multicurrency Lenders shall be denominated in
Dollars.
(b) Each borrowing by any Borrower of Multicurrency Loans shall be
comprised of simultaneous borrowings from each of the General Multicurrency
Lenders and the Dollar Multicurrency Lenders, with such borrowings to be ratable
according to the respective General Multicurrency Commitments of all of the
General Multicurrency Lenders and the Dollar Multicurrency Commitments of all of
the Dollar Multicurrency Lenders. In determining the ratable amounts of Loans to
be made by the General Multicurrency Lenders and Dollar Multicurrency Lenders,
respectively, pursuant to the preceding sentence when such determination must be
made with respect to Multicurrency Loans denominated in euro, the principal
amount of such euro-denominated Multicurrency Loans shall be deemed to be the
36
Dollar Equivalent Amount of such euro-denominated Multicurrency Loans (using the
Spot Exchange Rate applicable as of the Business Day on which the relevant
borrowing notice is furnished to the Administrative Agent pursuant to Section
4.2). In the case of a borrowing from the General Multicurrency Lenders of
Multicurrency Loans denominated in Dollars, the Multicurrency Loans made
simultaneously by the Dollar Multicurrency Lenders shall be Multicurrency Loans
of the same Type and, in the event such Multicurrency Loans are Eurocurrency
Loans, all such Multicurrency Loans shall have the same initial Interest
Periods. In the case of a borrowing from the General Multicurrency Lenders of
Multicurrency Loans denominated in euro, the Multicurrency Loans made
simultaneously by the Dollar Multicurrency Lenders shall be Multicurrency Loans
denominated in Dollars having the same initial Interest Period as the related
euro-denominated Multicurrency Loans made by the General Multicurrency Lenders.
(c) Each payment (including optional and mandatory prepayments) by any
Borrower of principal of, or interest on, any Multicurrency Loans shall be made
simultaneously in respect of Multicurrency Loans made to such Borrower by the
General Multicurrency Lenders and the related Multicurrency Loans made to such
Borrower by the Dollar Multicurrency Lenders, ratably according to the
respective principal amounts of Multicurrency Loans held by the General
Multicurrency Lenders and the Dollar Multicurrency Lenders (and, if such
prepayment is in respect of Dollar-denominated Multicurrency Loans made by the
General Multicurrency Lenders, such prepayment in respect of Multicurrency Loans
made by the Dollar Multicurrency Lenders shall be made in respect of
Multicurrency Loans of the same Type and, in the case of Eurocurrency Loans,
having the same Interest Periods). In determining the ratable amounts owing to
the General Multicurrency Lenders and Dollar Multicurrency Lenders,
respectively, pursuant to the preceding sentence when such determination must be
made with respect to Multicurrency Loans denominated in euro, the principal
amount of such euro-denominated Multicurrency Loans shall be deemed to be the
Dollar Equivalent Amount of such euro-denominated Multicurrency Loans (using the
Spot Exchange Rate applicable on the date on which the interest rate was most
recently determined with respect thereto).
(d) If, on the last day of any Interest Period applicable to
Multicurrency Loans denominated in euro, the aggregate outstanding principal
amount of the related Multicurrency Loans made by the Dollar Multicurrency
Lenders does not equal the Related Dollar Amount, the relevant Borrower shall
prepay Multicurrency Loans denominated in euro or Dollars, as the case may be,
to the extent necessary such that, after giving effect to such prepayment, the
aggregate outstanding principal amount of such Dollar-denominated Multicurrency
Loans is equal to such Related Dollar Amount.
SECTION 5. LETTERS OF CREDIT
5.1. L/C COMMITMENT. (a) Prior to the Amendment and Restatement
Effective Date, the Existing Issuing Lender has issued the Existing Letters of
Credit under the Existing Credit Agreement which, from and after the Amendment
and Restatement Effective Date, shall constitute Letters of Credit hereunder.
Subject to the terms and conditions hereof, each Issuing Lender, in reliance on
the agreements of the other Multicurrency Lenders set forth in Section 5.4(a),
agrees to issue letters of credit (the letters of credit issued on and after the
Amendment and Restatement Effective Date pursuant to this Section 5, together
with the Existing Letters of Credit, collectively, the "LETTERS OF CREDIT") for
the account of any Borrower on any Business Day during the Multicurrency
Commitment Period in such form as may be approved from time to time by such
Issuing Lender; provided, that no Issuing Lender shall have any obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Multicurrency Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is
37
five Business Days prior to the Multicurrency Termination Date, PROVIDED that
any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2. PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. Any Borrower may from
time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may request. Upon receipt of any Application, an Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and
the relevant Borrower (but in no event shall any Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto). Promptly after issuance by an Issuing
Lender of a Letter of Credit, such Issuing Lender shall furnish a copy of such
Letter of Credit to the relevant Borrower. Each Issuing Lender shall promptly
furnish to the Administrative Agent, notice of the issuance of each Letter of
Credit issued by it (including the amount thereof).
5.3. FEES AND OTHER CHARGES. (a) Each Borrower will pay a fee on the
aggregate daily average drawable amount of all outstanding Letters of Credit
issued for such Borrower's account at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurocurrency Loans under the Multicurrency
Facility, shared ratably among the Multicurrency Lenders in accordance with
their respective Multicurrency Percentages and payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date of any such Letter of Credit.
In addition, each Borrower shall pay to the relevant Issuing Lender for its own
account a fronting fee on the aggregate daily average drawable amount of all
outstanding Letters of Credit issued for such Borrower's account by such Issuing
Lender of, in the case of The Bank of New York, 1/4 of 1% per annum, and in the
case of any other Issuing Lender, an amount to be agreed upon by the relevant
Borrower and the relevant Issuing Lender, payable quarterly in arrears on each
L/C Fee Payment Date after the issuance date of any such Letter of Credit.
(b) In addition to the foregoing fees, each Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit issued for such Borrower's account.
5.4. L/C PARTICIPATIONS. (a) Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Multicurrency Percentage in each Issuing Lender's obligations and
rights under each Letter of Credit issued by such Issuing Lender hereunder and
the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the relevant
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such
38
Issuing Lender upon demand at such Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Multicurrency
Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to Section 5.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is not
paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 5.4(a) is not made available to such Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Multicurrency Facility. A
certificate of such Issuing Lender submitted to any L/C Participant with respect
to any such amounts owing under this Section shall be conclusive in the absence
of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its PRO
RATA share of such payment in accordance with Section 5.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from a Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its PRO RATA share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
5.5. REIMBURSEMENT OBLIGATION OF THE BORROWERS. Each Borrower agrees
to reimburse each Issuing Lender on each date on which such Issuing Lender
notifies such Borrower of the date and amount of a draft presented under any
Letter of Credit issued for such Borrower's account and paid by such Issuing
Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with
such payment (the amounts described in the foregoing clauses (a) and (b) in
respect of any drawing, collectively, the "PAYMENT AMOUNT"). Each such payment
shall be made to such Issuing Lender at its address for notices specified herein
in lawful money of the United States of America and in immediately available
funds. Interest shall be payable on each Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in (i) until the
second Business Day following the date of the applicable drawing, Section 6.8(b)
and (ii) thereafter, Section 6.8(c). Each drawing under any Letter of Credit
shall (unless an event of the type described in Section 11(g), (h) or (i) shall
have occurred and be continuing with respect to the Borrower for whose account
such Letter of Credit was issued, in which case the procedures specified in
Section 5.4 for funding by L/C Participants shall apply) constitute a request by
such Borrower to the Administrative Agent for a borrowing pursuant to Section
4.2 of Base Rate Loans in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of
Multicurrency Loans could be made, pursuant to Section 4.2, if the
Administrative Agent had received a notice of such borrowing at the time the
Administrative Agent receives notice from the relevant Issuing Lender of such
drawing under such Letter of Credit.
5.6. OBLIGATIONS ABSOLUTE. Each Borrower's obligations under this
Section 5 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that any
Borrower may have or have had against any Issuing Lender, any
39
beneficiary of a Letter of Credit or any other Person. Each Borrower also agrees
with each Issuing Lender that such Issuing Lender shall not be responsible for,
and such Borrower's Reimbursement Obligations under Section 5.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among any Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of any Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Lender. Each Borrower agrees that any action taken or omitted by an
Issuing Lender under or in connection with any Letter of Credit issued by it for
such Borrower's account, or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on such Borrower and shall not result in any liability of
such Issuing Lender to such Borrower.
5.7. LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the relevant Borrower of the date and amount thereof. The responsibility
of the relevant Issuing Lender to the relevant Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit issued by
such Issuing Lender, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment are substantially in conformity with such Letter of Credit.
5.8. APPLICATIONS. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 5, the provisions of this Section 5 shall apply.
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO
THE LOANS AND THE LETTERS OF CREDIT
6.1. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Lender (i) the then unpaid principal amount of each Revolving
Credit Loan made by such Lender to such Borrower, on the Revolving Credit
Termination Date (or on such earlier date on which the Loans become due and
payable pursuant to Section 11), (ii) the then unpaid principal amount of each
Multicurrency Loan made by such Lender to such Borrower, on the dates required
by Section 4.3 and Section 6.5 and on the Multicurrency Termination Date (or on
such earlier date on which the Loans become due and payable pursuant to Section
11) and (iii) the principal amount of the Tranche B Term Loan made by such
Lender to such Borrower, in installments according to the amortization schedule
set forth in Section 2.3 (or on such earlier date on which the Loans become due
and payable pursuant to Section 11). Each Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans made to it from time to
time outstanding from the date of such Loans until payment in full thereof at
the rates per annum, and on the dates, set forth in Section 6.8.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender to such Borrower from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
40
(c) The Administrative Agent, on behalf of each Borrower, shall
maintain the Register pursuant to Section 13.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made or
continued hereunder and any Note evidencing such Loan, the Type of such Loan and
each Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from each Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 6.1(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of each Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of any Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) Each Borrower agrees that, upon the request to the Administrative
Agent by any Lender, such Borrower will execute and deliver to such Lender a
promissory note of such Borrower evidencing any Tranche B Term Loans or
Revolving Credit Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit G-1 or G-2, respectively, with appropriate insertions as to
date and principal amount.
6.2. COMMITMENT FEES, ETC. (a) The Primary Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Primary Borrower agrees to pay to the Administrative Agent for
the account of each Multicurrency Lender a commitment fee for the period from
and including the Closing Date to the last day of the Multicurrency Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Multicurrency Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Multicurrency Termination Date,
commencing on the first of such dates to occur after the date hereof.
(c) The Primary Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Primary Borrower and the Administrative Agent.
6.3. TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS;
MULTICURRENCY COMMITMENTS. (a) The Primary Borrower shall have the right, upon
not less than three Business Days' notice to the Administrative Agent, to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
aggregate amount of the Revolving Credit Commitments; PROVIDED that such
termination or reduction of Revolving Credit Commitments shall be permitted only
to the extent that, after giving effect thereto and to any prepayments of the
Revolving Credit Loans or Swing Line Loans made on the effective date thereof,
the Total Revolving Extensions of Credit do not exceed the Total Revolving
Credit Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Credit Commitments then in effect.
41
(b) The Primary Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the
Multicurrency Commitments or, from time to time, to reduce the aggregate amount
of the Multicurrency Commitments; PROVIDED that such termination or reduction of
Multicurrency Commitments shall be permitted only to the extent that, after
giving effect thereto and to any prepayments of the Multicurrency Loans made on
the effective date thereof, the Total Multicurrency Extensions of Credit do not
exceed the Total Multicurrency Commitments. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Multicurrency Commitments then in effect.
6.4. OPTIONAL PREPAYMENTS. Any Borrower may at any time and from time
to time prepay the Loans made to it, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurocurrency Loans and at least
one Business Day prior thereto in the case of Base Rate Loans, which notice
shall specify the date and amount of prepayment and whether the prepayment is of
Eurocurrency Loans or Base Rate Loans; PROVIDED, that (a) if a Eurocurrency Loan
is prepaid on any day other than the last day of the Interest Period applicable
thereto, the relevant Borrower shall also pay any amounts owing pursuant to
Section 6.14 and (b) no prior notice is required for the prepayment of Swing
Line Loans. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Revolving Credit Loans that are
Base Rate Loans, Multicurrency Loans that are Base Rate Loans and Swing Line
Loans) accrued interest to such date on the amount prepaid. Partial prepayments
of Loans (other than Swing Line Loans) shall be in an aggregate principal amount
of $1,000,000 or a whole multiple thereof (in the case of Loans denominated in
Dollars) or (euro)1,000,000 or a whole multiple thereof (in the case of Loans
denominated in euro). Partial prepayments of Swing Line Loans shall be in an
aggregate principal amount of $100,000 or a whole multiple thereof.
6.5. MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS. (a) Unless the
Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be
incurred by Holdings or any of its Subsidiaries (excluding any Indebtedness
permitted by Section 10.2), then, on the date of such incurrence the Tranche B
Term Loans shall be prepaid, and/or the Multicurrency Commitments shall be
reduced, by an amount equal to the amount of the Net Cash Proceeds of such
incurrence, as set forth in Section 6.5(d).
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date Holdings or any of its Subsidiaries shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event, then, unless a Reinvestment Notice shall
be delivered in respect thereof, the Tranche B Term Loans shall be prepaid,
and/or the Multicurrency Commitments shall be reduced, on or before the date
which is thirty days following the date of receipt of such Net Cash Proceeds, by
an amount equal to the amount of such Net Cash Proceeds, as set forth in Section
6.5(d); PROVIDED, that, notwithstanding the foregoing, (i) the aggregate amount
of Net Cash Proceeds of Asset Sales that may be excluded from the foregoing
requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in
any fiscal year of Holdings and (ii) on each Reinvestment Prepayment Date the
Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments
shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event, as set forth in Section 6.5(d).
(c) Subject to the last sentence of this paragraph, unless the
Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of
Holdings commencing with the fiscal year ending December 31, 2003, there shall
be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date,
the Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments
shall be reduced, by an amount equal to 50% of such Excess Cash Flow, as set
forth in Section 6.5(d). Each such prepayment and commitment reduction shall be
made on a date (an "EXCESS CASH FLOW APPLICATION
42
DATE") no later than ten days after the earlier of (i) the date on which the
financial statements of Holdings referred to in Section 9.1, for the fiscal year
with respect to which such prepayment is made, are required to be delivered to
the Lenders and (ii) the date such financial statements are actually delivered.
No prepayment shall be required pursuant to this paragraph (c) in respect of any
fiscal year if the Consolidated Leverage Ratio at the end of such fiscal year
was less than or equal to 2.5 to 1.0.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section shall be applied, FIRST, to
the prepayment of the Tranche B Term Loans and, SECOND, after the Tranche B Term
Loans have been prepaid in full, to reduce permanently the Multicurrency
Commitments; PROVIDED, that the Multicurrency Commitments shall not be so
reduced to an amount less than the amount of the L/C Commitment. Any such
reduction of the Multicurrency Commitments shall be accompanied by prepayment of
the Multicurrency Loans to the extent, if any, that the Total Multicurrency
Extensions of Credit exceed the amount of the Total Multicurrency Credit
Commitments as so reduced, PROVIDED that if the aggregate principal amount of
Multicurrency Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the relevant Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment of Loans under any Facility pursuant to this Section shall be
made, first, to Base Rate Loans under such Facility and, second, to Eurocurrency
Loans under such Facility. Each prepayment of the Loans under this Section
(except in the case of Multicurrency Loans that are Base Rate Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
6.6. CONVERSION AND CONTINUATION OPTIONS. (a) Any Borrower may elect
from time to time to convert Eurocurrency Loans of such Borrower under any
Facility denominated in Dollars to Base Rate Loans under such Facility by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, PROVIDED that any such conversion of Eurocurrency Loans may be
made only on the last day of an Interest Period with respect thereto. Any
Borrower may elect from time to time to convert Base Rate Loans under any
Facility to Eurocurrency Loans in Dollars under such Facility by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election (which notice shall specify the length of the initial Interest
Period therefor), PROVIDED that no Base Rate Loan under a particular Facility
may be converted into a Eurocurrency Loan (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Borrower may elect to continue any Eurocurrency Loan under any
Facility as Eurocurrency Loans in the same currency under such Facility upon the
expiration of the then current Interest Period with respect thereto by giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, PROVIDED
that no Eurocurrency Loan under a particular Facility may be continued as such
(i) when any Event of Default has occurred and is continuing and the
Administrative Agent has, or the Majority Facility Lenders in respect of such
Facility have, determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and PROVIDED, FURTHER,
that if the relevant Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso, such Loans (A) in the case of Loans in
Dollars, shall be converted automatically to Base Rate Loans on the last day of
such then
43
expiring Interest Period and (B) in the case of Loans in euro, shall be
continued for Interest Periods of one month or such shorter duration as the
Administrative Agent shall select. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
6.7. MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EUROCURRENCY TRANCHES.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurocurrency Loans and
all selections of Interest Periods shall be in such amounts and be made pursuant
to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurocurrency Loans comprising each Eurocurrency Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, in the case of Eurocurrency Loans denominated in Dollars, or
(euro)5,000,000 or a whole multiple of (euro)1,000,000 in excess thereof, in the
case of Eurocurrency Loans denominated in euro, and (b) no more than ten
Eurocurrency Tranches shall be outstanding at any one time.
6.8. INTEREST RATES AND PAYMENT DATES. (a) Each Eurocurrency Loan
under each Facility shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurocurrency Rate
determined for such day PLUS the Applicable Margin for such Facility.
(b) Each Base Rate Loan under each Facility shall bear interest at a
rate per annum equal to the Base Rate PLUS the Applicable Margin for such
Facility.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
that is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section PLUS 2%
or (y) in the case of Reimbursement Obligations, the rate applicable to Base
Rate Loans under the Multicurrency Facility PLUS 2%, and (ii) if all or a
portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to Base Rate Loans under the relevant Facility PLUS 2% (or, in the case of any
such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility PLUS 2%), in
each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
6.9. COMPUTATION OF INTEREST AND FEES. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the relevant Borrower and the relevant
Lenders of each determination of a Eurocurrency Rate. Any change in the interest
rate on a Loan resulting from a change in the Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the relevant Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
each Borrower and the Lenders in the
44
absence of manifest error. The Administrative Agent shall, at the request of the
relevant Borrower, deliver to such Borrower a statement showing the quotations
used by the Administrative Agent in determining any interest rate pursuant to
Section 6.8(a).
6.10. INABILITY TO DETERMINE INTEREST RATE. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the relevant Borrower)
that, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurocurrency Rate
for the relevant currency for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurocurrency Rate for the relevant currency determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
relevant Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x)(i) any Eurocurrency Loans denominated in Dollars under
the relevant Facility requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, and (ii) any Eurocurrency Loans
denominated in euro under the relevant Facility requested to be made on the
first day of such Interest Period shall be made at the rate determined by the
Administrative Agent as its cost of funding such Loans PLUS the Applicable
Margin for Eurocurrency Loans under such Facility, (y) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurocurrency Loans shall be continued as Base Rate Loans and
(z)(i) any outstanding Eurocurrency Loans denominated in Dollars under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans and (ii) any
Eurocurrency Loans denominated in euro shall be repaid on the last day of the
current Interest Period and may be reborrowed in Dollars in accordance with the
provisions of Section 4.2. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans under the relevant Facility
shall be made or continued as such, nor shall any Borrower have the right to
convert Loans under the relevant Facility to Eurocurrency Loans.
6.11. PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by any
Borrower from the Lenders hereunder, each payment by any Borrower on account of
any commitment fee or Letter of Credit fee, and any reduction of the Commitments
of the Lenders, shall be made PRO RATA according to the respective Tranche B
Term Loan Percentages, Multicurrency Percentages or Revolving Credit
Percentages, as the case may be, of the relevant Lenders. Each reduction of the
Total Multicurrency Commitments shall be applied to the amounts of the scheduled
reductions of the Total Multicurrency Commitments pursuant to Section 4.3 PRO
RATA according to the outstanding amounts thereof.
(b) Except as provided in Section 6.11(d), each payment (including
each prepayment) of the Tranche B Term Loans shall be allocated among the
Tranche B Term Loan Lenders holding such Tranche B Term Loans PRO RATA based on
the principal amount of Tranche B Term Loans held by such Tranche B Term Loan
Lenders, and shall be applied to the installments of such Tranche B Term Loans
PRO RATA based on the remaining outstanding principal amount of such
installments. Amounts prepaid on account of the Tranche B Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by any Borrower on
account of principal of and interest on the Revolving Credit Loans or the
Multicurrency Loans shall be made PRO RATA according to the respective
outstanding principal amounts of the Revolving Credit Loans or
45
Multicurrency Loans, as the case may be, then held by the Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit shall
be made to the Issuing Lender that issued such Letters of Credit. In relation to
the payment of any amount of euro, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany as the
Administrative Agent shall from time to time nominate for this purpose.
(d) Notwithstanding anything to the contrary in Sections 6.5 or 6.11,
so long as any Multicurrency Commitment is in effect, each Tranche B Term Loan
Lender may, at its option, decline all or any portion of any mandatory payment
applicable to the Tranche B Term Loan of such Lender; accordingly, with respect
to the amount of any mandatory prepayment described in Section 6.5 that is
allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT
AMOUNT"), at any time when any Multicurrency Commitments are in effect, Holdings
will, in lieu of applying such amount to the prepayment of Tranche B Term Loans,
as provided in paragraph Section 6.5(d), on the date specified in Section 6.5
for such prepayment, give the Administrative Agent telephonic notice (promptly
confirmed in writing) requesting that the Administrative Agent prepare and
provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION
NOTICE") as described below. As promptly as practicable after receiving such
notice from Holdings, the Administrative Agent will send to each Tranche B Term
Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H,
and shall include an offer by Holdings to cause the Primary Borrower to prepay
on the date (each a "PREPAYMENT DATE") that is 2 Business Days after the date of
the Prepayment Option Notice, the Tranche B Term Loan of such Lender by an
amount equal to the portion of the Prepayment Amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loan. On the Prepayment Date, (i) the Primary Borrower shall pay to the
Administrative Agent the aggregate amount necessary to prepay that portion of
the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan
Lenders have accepted prepayment as described above (such Lenders, the
"ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B
Prepayment Amounts, as applicable, with respect to each Accepting Lender, (ii)
the Primary Borrower shall pay to the Administrative Agent an amount equal to
50% of the portion of the Tranche B Prepayment Amount not accepted by the
Tranche B Term Loan Lenders (or, if the aggregate outstanding principal amount
of Multicurrency Loans is less than such portion, such lesser amount), and the
outstanding Multicurrency Loans shall be automatically prepaid by such amount
(but without any corresponding permanent reduction in the Multicurrency
Commitments), and (iii) the Primary Borrower shall be entitled to retain the
remaining portion of the Tranche B Prepayment Amount not accepted by the Tranche
B Term Loan Lenders.
(e) All payments (including prepayments) to be made by any Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
local time in the city of the relevant Payment Office, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the relevant
Payment Office, in Dollars (or in euro, in the case of payments of principal or
interest in respect of Loans denominated in euro) and in immediately available
funds. Any payment made by the Borrower after 12:00 Noon, local time in the city
of the relevant Payment Office, on any Business Day shall be deemed to have been
made on the next following Business Day. The Administrative Agent shall
distribute such payments to the Lenders entitled thereto promptly upon receipt
in like funds as received. If any payment hereunder (other than payments on the
Eurocurrency Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
46
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate (in the case of amounts in Dollars) or at the rate determined by the
Administrative Agent as its cost of funding such amounts (in the case of amounts
in euro), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount (but only to the extent theretofore made available by it to the relevant
Borrower) with interest thereon at the rate per annum applicable to Base Rate
Loans under the relevant Facility (in the case of Loans denominated in Dollars)
or the rate determined by the Administrative Agent as its cost of funding such
amounts, PLUS the Applicable Margin for Eurocurrency Loans under such Facility
(in the case of Loans denominated in euro) on demand, from the relevant
Borrower.
(g) Unless the Administrative Agent shall have been notified in
writing by the relevant Borrower prior to the date of any payment due to be made
by such Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that such Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective PRO RATA shares of a corresponding amount. If such payment is not
made to the Administrative Agent by such Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate (in the case of Loans
denominated in Dollars) or the rate determined by the Administrative Agent as
its cost of funding such amounts, PLUS the Applicable Margin for Eurocurrency
Loans under such Facility (in the case of Loans denominated in euro). Nothing
herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against any Borrower.
(h) In the event that (i) a Borrower gives notice to the
Administrative Agent that (A) such Borrower intends to make a borrowing under
Section 4.2 of Multicurrency Loans denominated in euro, (B) such Borrower
intends, on the requested Borrowing Date for such Eurocurrency Loans, to prepay
under Section 6.4 Multicurrency Loans denominated in Dollars and (C) after
giving effect to such borrowing and prepayment, the Available Multicurrency
Commitment shall not be less than zero, and (ii) if (after giving effect to such
requested Multicurrency Loans, but before giving effect to such prepayment) the
Available Multicurrency Commitment shall be less than zero, the Administrative
Agent may, in reliance on the foregoing notice, make available to such Borrower
the amount of such requested Multicurrency Loans; PROVIDED, HOWEVER, that, in
the event that such Borrower fails to make such prepayment on the requested
Borrowing Date, such Borrower shall, without notice or demand, immediately
prepay the Multicurrency Loans made to it in an aggregate principal amount equal
to the amount by which the aggregate Multicurrency Extensions of Credit exceeds
the aggregate Multicurrency Commitments then in effect, together with interest
accrued to the date of such prepayment and any amounts payable under Section
6.14.
(i) A payment shall be deemed to have been made by the Administrative
Agent on the date on which it is required to be made under this Agreement if the
Administrative Agent has, on or
47
before that date, taken all relevant steps to make that payment. With respect to
the payment of any amount denominated in euro, the Administrative Agent shall
not be liable to any Borrower or any of the Lenders in any way whatsoever for
any delay, or the consequences of any delay, in the crediting to any account of
any amount required by this Agreement to be paid by the Administrative Agent if
the Administrative Agent shall have taken all relevant steps to achieve, on the
date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds in the euro unit to the account
with the bank in the principal financial center in the Participating Member
State which the relevant Borrower or, as the case may be, any Lender shall have
specified for such purpose. In this paragraph (i), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of euro.
6.12. REQUIREMENTS OF LAW. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurocurrency Loan made by it, or change the basis of taxation
of payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 6.13 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurocurrency Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Primary Borrower shall promptly
pay such Lender, upon its demand, any additional amounts necessary to compensate
such Lender for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this Section, it
shall promptly notify the Primary Borrower (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Primary Borrower (with a copy to the
Administrative
48
Agent) of a written request therefor, the Primary Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Primary Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Primary Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
6.13. TAXES. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and 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 Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") or any Other
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes or Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; PROVIDED, however, that no Borrower shall be required to increase any
such amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the requirements
of paragraph (d) or (e) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the relevant Borrower with respect to such Non-Excluded
Taxes pursuant to Section 6.13(a).
(b) In addition, each Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any
Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by such
Borrower showing payment thereof. If the relevant Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, such Borrower shall indemnify the Agents and the
Lenders for any incremental taxes, interest or penalties that may become payable
by any Agent or any Lender as a result of any such failure. The agreements in
this Section 6.13 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "NON-U.S. LENDER") shall
deliver to the Primary Borrower and the Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN
or Form W-8ECI, as applicable, or, in the case of a Non-U.S. Lender claiming
exemption from
49
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest" a statement substantially in the
form of Exhibit I and a Form W-8BEN, or any subsequent versions thereof or
successors thereto 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 all payments by any Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Primary
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the Primary Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which a Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Administrative Agent), at the time or times reasonably requested by such
Borrower, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate, PROVIDED that such Borrower furnishes such documentation to such
Lender, such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender's reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
6.14. INDEMNITY. Each Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurocurrency Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making by such Borrower of a prepayment
or conversion of Eurocurrency Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurocurrency market. A certificate as to any amounts payable
pursuant to this Section submitted to the Primary Borrower, on behalf of the
relevant Borrower, by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
6.15. ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change after the date hereof in any Requirement of Law or in
the interpretation or application thereof after the date hereof shall make it
unlawful for any Lender to make or maintain Eurocurrency Loans as contemplated
by this Agreement, (a) the commitment of such Lender hereunder to make
Eurocurrency Loans, continue Eurocurrency Loans as such and convert Base Rate
Loans to Eurocurrency Loans shall forthwith be canceled and (b) such Lender's
Loans then outstanding as Eurocurrency Loans, if any, shall
50
be converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law (such conversion to be effected at the Spot Exchange
Rate in effect on such conversion date, in the case of conversion of Loans in
euro to Base Rate Loans). If any such conversion of a Eurocurrency Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower in respect of such Eurocurrency Loans shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 6.14.
6.16. CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 6.12, 6.13(a) or
6.15 with respect to such Lender, it will, if requested by the Primary Borrower,
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate another lending office for any Loans affected by such event with
the object of avoiding the consequences of such event; PROVIDED, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and PROVIDED, FURTHER, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 6.12, 6.13(a) or 6.15.
6.17. REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The Primary
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 6.12 or 6.13, or gives a
notice of illegality pursuant to Section 6.15, or (b) defaults in its obligation
to make Loans hereunder, with a replacement financial institution; PROVIDED that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Default or Event of Default shall have occurred and be continuing at the time of
such replacement, (iii) prior to any such replacement, such Lender shall not
have taken all actions under Section 6.16 so as to eliminate the continued need
for payment of amounts owing pursuant to Section 6.12 or 6.13 or to eliminate
any illegality described in a notice of illegality under Section 6.15, (iv) if
applicable, the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) if applicable, the Primary Borrower shall be liable to such
replaced Lender under Section 6.14 (as though Section 6.14 were applicable) if
any Eurocurrency Loan owing to such replaced Lender shall be purchased other
than on the last day of the Interest Period relating thereto, (vi) if
applicable, the replacement financial institution, if not already a Lender,
shall be reasonably satisfactory to the Administrative Agent, (vii) if
applicable, the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 13.6 (PROVIDED that the Primary
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) the Primary Borrower shall pay all additional amounts (if
any) required pursuant to Section 6.12 or 6.13, as the case may be, in respect
of any period prior to the date on which such replacement shall be consummated,
and (ix) any such replacement shall not be deemed to be a waiver of any rights
that any Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
6.18. OPTIONAL INCREASE OF FACILITIES. (a) In accordance with the
provisions of this Section 6.18, the Primary Borrower may, at its option, at any
three times during the term of this Agreement, request in writing (each, an
"OPTIONAL INCREASE REQUEST") that the Facilities be increased by up to
$300,000,000 in the aggregate for all Optional Increase Requests, of which not
more than $150,000,000 may be used to refinance or repay public Indebtedness of
Parent, PROVIDED that (i) no Default or Event of Default shall exist at the time
of or after giving effect to such increase and the use of proceeds thereof, (ii)
the Loan Parties shall be in PRO FORMA compliance with the financial covenants
contained in this Agreement after giving effect to such increase (as if such
increase had become effective on the first day of the applicable period of four
consecutive fiscal quarters) and the use of proceeds thereof, (iii) the
Administrative Agent shall have received evidence satisfactory to it that the
incurrence of such additional Indebtedness will not violate the terms of the
Indentures (other than any such Indenture the Indebtedness under which will be
simultaneously refinanced in full with the proceeds of such
51
increase) and (iv) any such amount used to refinance or repay public
Indebtedness of Parent shall be comprised of Optional Term Loans.
(b) Any optional increase under this Section shall be on terms and
conditions to be agreed upon by the Primary Borrower, the Administrative Agent
and each Lender providing an Optional Term Loan Commitment or increasing its
Multicurrency Commitment, and may consist of one or more additional term loan
tranches (each, an "OPTIONAL TERM LOAN TRANCHE"; the loans thereunder, the
"OPTIONAL TERM LOANS") and/or additional Multicurrency Commitments, PROVIDED
that (i) any such Optional Term Loans shall not amortize (on a percentage basis)
any faster than the Tranche B Term Loans and shall not mature prior to the final
maturity date of the Tranche B Term Loans in accordance with Section 2.3
(including the proviso thereto), (ii) any such additional loans made pursuant to
the increase in Multicurrency Commitments shall constitute "Multicurrency Loans"
and, as such, shall have the same terms and conditions as are applicable to
Multicurrency Loans hereunder, including, without limitation, the scheduled
reductions of Multicurrency Commitments, the Multicurrency Termination Date, the
Applicable Margin, the Commitment Fee Rate, the procedures for borrowing and the
borrowing conditions and (iii) not more than $150,000,000 aggregate principal
amount of loans made pursuant to the Optional Increase Requests shall consist of
Optional Term Loans. Any Optional Increase Request shall be submitted by the
Primary Borrower to the Lenders through Administrative Agent not less than 30
days prior to the proposed increase, specify the proposed effective date, type
and amount of such increase and be accompanied by (i) a certificate of a
Responsible Officer of the Primary Borrower stating that no Default or Event of
Default exists as of the date of the request or will result from the requested
increase, (ii) a written consent to the increase in the amount of the
Commitments executed by the Guarantors and (iii) such information as the
Administrative Agent may reasonably request for use in syndication of the
requested Optional Term Loan Tranche and/or increase in the Multicurrency
Commitments, as applicable. The Primary Borrower may also specify any fees
offered to those Lenders which agree to provide an Optional Term Loan Commitment
or increase their Multicurrency Commitment (which fees may be variable based
upon the amount which any such Lender is willing to provide of such increase in
Commitments). The consent of the Lenders parties at the time of such increase
shall not be required for an increase in the amount of any Commitment pursuant
to this Section.
(c) Each Lender may approve or reject an Optional Increase Request in
its sole and absolute discretion and, absent an affirmative written response
within 15 days after receipt of such request, shall be deemed to have rejected
the request. The rejection of such a request by any number of Lenders shall not
affect the Primary Borrower's right to increase the Commitments pursuant to this
Section as a result of, and with respect to those Lenders that approve such
increase and such additional Lenders that join this Agreement in accordance with
clause (f) of this Section. Notwithstanding any other provision hereof, no
Lender which rejects an Optional Increase Request shall be (i) subject to
removal as a Lender as a result of such rejection, (ii) obligated to lend any
amount in respect of such increase in Commitments or (iii) as a result of such
rejection, deemed to be in default in any respect hereunder.
(d) In responding to any Optional Increase Request under this Section,
each Lender that is willing to increase its Commitments shall specify the type
and amount of the proposed increase which it is willing to assume. The
effectiveness of any Optional Term Loan Tranche and any increase in the
Multicurrency Commitments shall be contingent upon (i) execution and delivery by
the Administrative Agent and the Primary Borrower of an Optional Increase
Amendment relating to such Optional Term Loan Tranche and/or increase in
Multicurrency Commitments, as applicable, (ii) execution and delivery by each
Lender providing Optional Term Loan Commitments under such Optional Term Loan
Tranche, or any additional Multicurrency Commitments, as applicable, of a Lender
Addendum, with such changes thereto as are necessary to reflect that such Lender
Addendum relates to the Optional Increase Amendment rather than this Agreement,
pursuant to which each such Lender becomes a party to the Optional Increase
Amendment relating to such Optional Term Loan Tranche, and/or increase in
52
Multicurrency Commitments, as applicable, (iii) execution and delivery by the
Primary Borrower (and, if applicable, Parent, Holdings and any of its
Subsidiaries) of such amendments to the Security Documents (including amendments
to the Mortgages) or such other documents as the Administrative Agent reasonably
deems necessary or desirable to reflect the terms of the Optional Increase
Amendment, (iv) receipt by the Administrative Agent of endorsements to each
mortgagee's title insurance policy or binding marked up title commitments
satisfying the requirements of Section 8.2(o) and (v) receipt by the
Administrative Agent of such corporate resolutions and officer's certificates of
the Loan Parties and legal opinions of counsel to the Loan Parties as the
Administrative Agent shall reasonably request with respect thereto, in each
case, in form and substance reasonably satisfactory to the Administrative Agent.
In the case of any Lender Addendum with respect to an Optional Increase
Amendment executed by any Person that was not theretofore a Lender, upon the
effectiveness of such Optional Increase Amendment such Person shall be a party
hereto and a Lender hereunder.
(e) If the aggregate principal amount committed to by the consenting
Lenders is less than the amount requested, the Primary Borrower may (i) reject
the proposed optional increase in Commitments in its entirety, (ii) accept the
offered amounts, (iii) designate one or more additional banks, financial
institutions or other entities which are reasonably acceptable to Administrative
Agent as additional Lenders hereunder in accordance with clause (f) of this
Section (each, a "NEW LENDER"), which New Lenders may commit to the amount of
the increase in the Commitment that has not been committed to by the consenting
Lenders, or (iv) request the consenting Lenders to commit to the amount of such
request not previously committed to by the consenting Lenders.
(f) Each New Lender designated by the Primary Borrower and reasonably
acceptable to Administrative Agent shall become an additional party hereto as a
Lender concurrently with the effectiveness of an Optional Increase Amendment
executed by such Lender and which, in any event, contains the representations,
warranties, indemnities and other protections afforded to the Administrative
Agent and the other Lenders which would be granted or made by an Assignee under
Section 13.6 by means of the execution of an Assignment and Acceptance.
(g) Subject to the foregoing, any Optional Increase Amendment
requested under this Section shall be effective as of the date proposed by the
Primary Borrower and shall provide for increases in the Commitments in an
aggregate principal amount equal to, without duplication, (i) the amount to
which consenting Lenders are willing to commit PLUS (ii) the amount committed to
by any New Lenders. Upon the effectiveness of any such Optional Increase
Amendment, the Primary Borrower shall, at the request of any Lender, issue new
or replacement Notes, as applicable, to each such affected Lender and new Notes
to each such New Lender, and the percentage PRO RATA share of each Lender will
be adjusted, higher or lower as needed, to give effect to the increase in the
outstanding Loans and Commitments.
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans and issue or participate in the Letters of Credit, Parent,
Holdings and each Borrower hereby jointly and severally represent and warrant to
each Agent and each Lender that:
7.1. FINANCIAL CONDITION. (a) The unaudited PRO FORMA consolidated
balance sheet of Parent and its consolidated Subsidiaries as at March 31, 2002
(the "PRO FORMA BALANCE SHEET"), copies of which have heretofore been furnished
to each Lender, has been prepared giving effect (as if such events had occurred
on such date) to (i) the Loans to be made or continued on the Amendment and
Restatement Effective Date and the use of proceeds thereof and (ii) the payment
of fees and expenses in connection with the foregoing. The Pro Forma Balance
Sheet has been prepared based on the best information
53
reasonably available to Parent as of the date of delivery thereof, and presents
fairly on a PRO FORMA basis the estimated financial position of Parent and its
consolidated Subsidiaries as at March 31, 2002, assuming that the events
specified in the preceding sentence had actually occurred at such date and
giving effect to the other assumptions set forth therein.
(b) The audited consolidated balance sheets of Parent as at December
31, 2001 and December 31, 2000, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from KPMG LLP, present fairly in all
material respects the consolidated financial condition of Parent as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The audited consolidated
balance sheets of Holdings as at December 31, 2001 and December 31, 2000, and
the related consolidated statements of income and of cash flows for the fiscal
years ended on such dates, reported on by and accompanied by an unqualified
report from KPMG LLP, present fairly in all material respects the consolidated
financial condition of Holdings as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the respective fiscal
years then ended.
(c) The unaudited consolidated balance sheets of each of Parent,
Holdings and the Primary Borrower as at March 31, 2002, and the related
unaudited consolidated statements of income and cash flows for the three-month
period ended on such date, present fairly in all material respects the
consolidated financial condition of Parent, Holdings and the Primary Borrower,
respectively, as at such date, and the consolidated results of their operations
and their consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein). Parent and its
Subsidiaries do not have any material Guarantee, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected or disclosed in the notes in the most recent financial statements of
Parent referred to in this paragraph or otherwise permitted by this Agreement
and disclosed to the Lenders in writing, except those relating to the Jazzland
Acquisition. During the period from December 31, 2001 to and including the date
hereof there has been no Disposition by Parent or any of its Subsidiaries of any
material part of its Business or Property.
7.2. NO CHANGE. Since December 31, 2001 there has been no development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.
7.3. EXISTENCE; COMPLIANCE WITH LAW. Each of Parent, Holdings and its
Subsidiaries (other than the Inactive Subsidiaries) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate (or equivalent) power and authority, and the
legal right, to own and operate its Property, to lease the Property it operates
as lessee and to conduct the Business in which it is currently engaged, (c) is
duly qualified as a foreign entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of Property or the conduct
of its Business requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect and (d) is in compliance with
all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.4. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each
Loan Party has the corporate (or equivalent) power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and to consummate the Transactions and, in the case of the Borrowers,
54
to borrow hereunder. Each Loan Party has taken all necessary corporate (or
equivalent) action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and the consummation of the Transactions
and, in the case of the Borrowers, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required to be obtained by any Loan Party in connection with the
Transactions and the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 7.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect and (ii) the filings referred
to in Schedule 7.19(a)-1. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
7.5. NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Loan Documents by the Loan Parties, the issuance of
Letters of Credit, the borrowings hereunder, the use of the proceeds thereof and
the consummation of the Transactions will not violate any Requirement of Law
applicable to, or any Contractual Obligation of, Parent, Holdings or any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of their respective Properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to Parent, Holdings or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
7.6. LITIGATION. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of Parent, Holdings or the Primary Borrower, threatened by or against Parent,
Holdings or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
7.7. NO DEFAULT. Neither Parent, Holdings, nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
7.8. OWNERSHIP OF PROPERTY; LIENS. Each of Parent, Holdings and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its material Real Property, and good title to, or a valid leasehold interest in,
all its other material Property, and none of such Property (including the Real
Property) is subject to any Lien except a Permitted Lien. Attached as Schedule
7.8 is a list of all Real Property owned, leased or operated by, and which is
material to the operation of the Business of, Parent, Holdings or its
Subsidiaries.
7.9. INTELLECTUAL PROPERTY. Parent, Holdings and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property material to
the conduct of its business as currently conducted. No claim has been asserted
and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does Parent, Holdings or the Primary Borrower know of any valid
basis for any such claim except for claims which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The
55
use of Intellectual Property by Parent, Holdings and its Subsidiaries does not
infringe on the rights of any Person to an extent which could reasonably be
expected to have a Material Adverse Effect.
7.10. TAXES. Each of Parent, Holdings and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property and
all other material taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves (to the extent required by GAAP) have been
provided on the books of Parent, Holdings or its Subsidiaries, as the case may
be, and those which, with respect to taxes or other assessments on Real
Properties, can be contested without payment under applicable law); no material
tax Lien has been filed, and, to the knowledge of Parent, Holdings and the
Primary Borrower, no claim is being asserted with respect to any such tax, fee
or other charge except claims that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
7.11. FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "buying" or "carrying" any Margin Stock within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by the Administrative Agent, the
Borrowers will furnish to the Administrative Agent a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
7.12. LABOR MATTERS. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against Parent, Holdings or any of its Subsidiaries pending or,
to the knowledge of Parent, Holdings or the Primary Borrower, threatened; (b)
hours worked by and payment made to employees of Parent, Holdings and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all
payments due from Parent, Holdings or any of its Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a liability
on the books of Parent, Holdings or the relevant Subsidiary.
7.13. ERISA. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, (a) no ERISA Event has occurred
during the three-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied with
its terms and the applicable provisions of ERISA and the Code, (b) no
termination of a Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such three-year period, (c) the present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
and (d) neither Parent, Holdings, nor any ERISA Affiliate would become subject
to any withdrawal liability under Section 4201 of ERISA if Parent, Holdings, or
any ERISA Affiliate were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made.
7.14. INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
56
7.15. SUBSIDIARIES. Except as disclosed to the Administrative Agent by
the Primary Borrower in writing from time to time after the Amendment and
Restatement Effective Date, Schedule 7.15 sets forth the name and jurisdiction
of incorporation of each Subsidiary (other than Inactive Subsidiaries and other
than Subsidiaries that are included in Excluded Assets (as defined in the
Guarantee and Collateral Agreement)) of the Parent and, as to each such
Subsidiary, the percentage of each class of Capital Stock owned by any Loan
Party and, except as so disclosed, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of Holdings, the Primary
Borrower or any such Subsidiary, except as created by the Loan Documents.
7.16. USE OF PROCEEDS. The proceeds of the Tranche B Term Loans made
on the Closing Date were used in accordance with Section 7.16 of the Existing
Credit Agreement. The proceeds of the Tranche B Term Loans made on the Amendment
and Restatement Effective Date shall be used to pay transaction costs incurred
in respect of the transactions contemplated herein. The proceeds of the
Revolving Credit Loans, the Multicurrency Loans and the Swing Line Loans, and
the Letters of Credit, shall be used for general corporate purposes, including
Acquisitions, Capital Expenditures and other uses permitted hereunder and to pay
transaction costs incurred in respect of the transactions contemplated herein;
PROVIDED that such proceeds shall not be used to repay or prepay any Tranche B
Term Loans. The proceeds of the Optional Term Loans shall be used for the
purposes specified in the applicable Optional Increase Amendment.
7.17. ENVIRONMENTAL MATTERS. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the Real Properties, and other amusement parks, attractions or
real properties operated solely by Parent, Holdings or its Subsidiaries, or
in respect of which Parent, Holdings or any of its Subsidiaries would be
liable as an owner, operator or other occupant under any Environmental Law
(collectively, together with the Real Properties, the "OPERATED
PROPERTIES"), do not contain, and, to their knowledge, have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise to liability under, any Environmental Law;
(b) neither Parent, Holdings nor any of its Subsidiaries has received
or is aware of any notice of violation or alleged violation of,
non-compliance with, or liability or potential liability under,
Environmental Laws with regard to any of the Operated Properties or the
business operated by Parent, Holdings or any of its Subsidiaries (the
"BUSINESS"), nor does Parent, Holdings or the Primary Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Operated Properties in violation of, or in a manner or
to a location that could give rise to liability under, any Environmental
Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Operated
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no Environmental Claim is pending or, to the knowledge of Parent,
Holdings and the Primary Borrower, threatened, under any Environmental Law
to which Parent, Holdings or any Subsidiary is or will be named as a party
with respect to the Operated Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other
57
orders, or other requirements of any Governmental Authority outstanding
under any Environmental Law with respect to the Operated Properties or the
Business;
(e) there has been no Release or threat of Release of Materials of
Environmental Concern at or from the Operated Properties, or arising from
or related to the operations of Parent, Holdings or any Subsidiary in
connection with the Operated Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws;
(f) the Operated Properties and the Business are in compliance, and
have in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about the
Operated Properties or violation of any Environmental Law with respect to
the Operated Properties or the Business; and
(g) neither Parent, Holdings nor any Subsidiary has assumed or
retained any liability of any other Person under Environmental Laws (other
than assumptions by operation of law in connection with Acquisitions).
7.18. ACCURACY OF INFORMATION, ETC. No statement or information (other
than projections and pro forma financial information) contained in this
Agreement or any other Loan Document, or furnished by or on behalf of any Loan
Party in the Confidential Information Memorandum, or contained in any other
document, certificate or statement furnished by or on behalf of any Loan Party
to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances in which
they were made not misleading. The projections and PRO FORMA financial
information contained in the materials referenced above were based upon good
faith estimates and assumptions believed by management of Holdings to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected or pro forma results set forth therein
by a material amount. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and written
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
7.19. SECURITY DOCUMENTS. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the Lenders, a legal, valid and enforceable security interest in the Collateral
(other than the Mortgaged Properties) described therein and proceeds thereof. In
the case of the Pledged Stock described in the Guarantee and Collateral
Agreement, when any stock certificates representing such Pledged Stock are
delivered to the Administrative Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, when financing statements
in appropriate form are filed in the offices specified on Schedule 7.19(a)-1
(which financing statements have been duly completed and delivered to the
Administrative Agent) and such other filings as are specified on Schedule 3 to
the Guarantee and Collateral Agreement (all documentation in respect of which
other filings have been or will have been duly completed and executed and
delivered to the Administrative Agent on or prior to the Amendment and
Restatement Effective Date), the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and
58
interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior and superior in right to any other Person
(except, in the case of Collateral other than Pledged Stock, Liens permitted by
Section 10.3). Schedule 7.19(a)-2 lists each UCC Financing Statement that (i)
names any Loan Party as debtor and (ii) will remain on file after the Amendment
and Restatement Effective Date. Schedule 7.19(a)-3 lists each UCC Financing
Statement that (i) names any Loan Party as debtor and (ii) will be terminated on
or prior to the Amendment and Restatement Effective Date; and on or prior to the
Amendment and Restatement Effective Date, the Primary Borrower will have
delivered to the Administrative Agent, or caused to be filed, duly completed UCC
termination statements, authorized by the relevant secured party, in respect of
each UCC Financing Statement listed in Schedule 7.19(a)-3.
(b) Each of the Mortgages, when filed (or which have been filed) in
the offices specified on Schedule 7.19(b) (in the case of the Mortgages executed
and delivered in connection with the Existing Credit Agreement or to be executed
and delivered on the Amendment and Restatement Effective Date) or in the
appropriate recording office in the jurisdiction where the Mortgaged Property is
located (in the case of any Mortgage to be executed and delivered pursuant to
Section 9.6(b)), will be (or, in the case of Mortgages executed and delivered in
connection with the Existing Credit Agreement, are) effective to create in favor
of the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof; and shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in the Mortgaged
Properties described therein and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person (other than Persons holding Liens or other
encumbrances or rights permitted hereunder or by the relevant Mortgage).
(c) Each Foreign Security Document, when executed and delivered
hereunder, will be effective to create in favor of the Administrative Agent, for
the benefit of the Lenders, a legal, valid and enforceable security interest in
the Collateral described therein and proceeds thereof. When the actions
specified in such Foreign Security Document for the perfection of the security
interest created thereby have been taken, such Foreign Security Document will
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for (i) in the case of Foreign Subsidiary Pledge Agreements, the
Obligations (as defined in the Guarantee and Collateral Agreement) and (ii) in
the case of any other Foreign Security Document, as security for the obligations
specified therein, prior and superior in right to any other Person (except, in
the case of Collateral other than Pledged Stock, Liens permitted by Section
10.3).
7.20. SOLVENCY. Each of Parent, Holdings and the Primary Borrower is,
and after giving effect to the Transactions and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and therewith
will be and will continue to be, Solvent.
7.21. REGULATION H. Except as set forth on Schedule 7.21, no Mortgage
shall encumber improved Real Property that is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968.
7.22. PARKS. Set forth on Schedule 1.1(b) is a complete and correct
list of all of the amusement and attraction parks (the "EXISTING PARKS") owned
by Holdings or its Subsidiaries on the Amendment and Restatement Effective Date.
59
SECTION 8. CONDITIONS PRECEDENT
8.1. CONDITIONS TO INITIAL EXTENSION OF CREDIT. The occurrence of the
Closing Date, and the agreement of each Lender to make the initial extension of
credit requested to be made by it on the Closing Date, were subject to the
satisfaction, prior to or concurrently with the making of such extensions of
credit on the Closing Date, of the conditions precedent set forth in Section 8.1
and 8.2 of the Existing Credit Agreement.
8.2. CONDITIONS TO AMENDMENT AND RESTATEMENT EFFECTIVE DATE. The
agreement of each Lender to make the extension of credit requested to be made by
it hereunder on the Amendment and Restatement Effective Date is subject to the
satisfaction, prior to or concurrently with the making of such extension of
credit on the Amendment and Restatement Effective Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
Parent, Holdings, each Domestic Subsidiary Borrower and each Foreign
Subsidiary Borrower, if any, that is to become a party hereto on the
Amendment and Restatement Effective Date, (ii) the Consent and
Confirmation, executed and delivered by a duly authorized officer of
Parent, Holdings, the Primary Borrower and each Subsidiary Guarantor, (iii)
a Mortgage Amendment with respect to each Mortgage in effect on the
Amendment and Restatement Effective Date, executed and delivered by a duly
authorized officer of each party thereto, (iv) a Lender Addendum executed
and delivered by each Lender and (v) for the account of each relevant
Lender that so requests, Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of each relevant
Borrower.
(b) CAPITAL STRUCTURE. The capital structure of each Loan Party after
the Transactions shall be as set forth in the Confidential Information
Memorandum.
(c) PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) the audited
consolidated financial statements described in Section 7.1(b) and (iii) the
unaudited interim consolidated financial statements described in Section
7.1(c).
(d) APPROVALS. All material Governmental Authority and third party
approvals necessary to be obtained by Holdings or any of its Subsidiaries
in connection with the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(e) RELATED AGREEMENTS. The Administrative Agent shall have received
(in a form reasonably satisfactory to the Administrative Agent) true and
correct copies, certified as to authenticity by Parent or Holdings, of the
Indentures, the Partnership Parks Agreements, the Marine World Agreements,
the Shared Services Agreement, the Tax Sharing Agreement and such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any other
debt instrument, security agreement or other material contract to which the
Loan Parties may be a party.
(f) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have
received from each Lender, in respect of such Lender's Loans and
Commitments, an Assignment and Acceptance executed by Xxxxxx Commercial
Paper Inc., the Administrative Agent and such Lender pursuant to which such
Lender shall have assigned to Xxxxxx Commercial Paper Inc. all of such
Loans and Commitments (as such term and all other capitalized terms in this
clause (f) are defined in the
60
Existing Credit Agreement), which Assignment and Acceptances shall become
effective on the Amendment and Restatement Effective Date (and only if such
date occurs).
(g) FEES. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including reasonable fees, disbursements and other charges of
counsel to the Agents), on or before the Amendment and Restatement
Effective Date. All such amounts will be paid with proceeds of Loans made
on the Amendment and Restatement Effective Date and will be reflected in
the funding instructions given by Holdings to the Administrative Agent on
or before the Amendment and Restatement Effective Date.
(h) BUSINESS PLAN. The Lenders shall have received a satisfactory
business plan for fiscal years 2002 through 2009 and a satisfactory written
analysis of the business and prospects of Holdings and its Subsidiaries for
the period from the Amendment and Restatement Effective Date through final
maturity of the Loans and the Commitments, in each case covering such
matters and in such level of detail as is customary in comparable financing
transactions.
(i) LIEN SEARCHES. The Administrative Agent shall have received the
results of recent Uniform Commercial Code and other lien searches in each
relevant domestic jurisdiction with respect to all Property of the Loan
Parties (except that with respect to the Real Property, such lien searches
shall be limited to the Mortgaged Properties), and such search shall reveal
no Liens on any of the Property of the Loan Parties, except for Liens
permitted by Section 10.3 or Liens to be discharged prior to or at the
Amendment and Restatement Effective Date.
(j) ENVIRONMENTAL MATTERS. The environmental reports described in
Schedule 8.2(j) shall have been received by the Administrative Agent and
the Lenders shall be reasonably satisfied with the results thereof.
(k) CLOSING CERTIFICATE. The Administrative Agent shall have received
a certificate of each Loan Party, dated the Amendment and Restatement
Effective Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(l) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Weil, Gotshal & Xxxxxx LLP, special
counsel to Parent, Holdings and its Subsidiaries, substantially in the
form of Exhibit F-1;
(ii) the legal opinion of Xxxxx Xxxxxxxx, Esq., general counsel
of Parent, Holdings and its Subsidiaries, substantially in the form of
Exhibit F-2;
(iii) the legal opinions of counsel to Parent and its
Subsidiaries in Belgium and Canada in respect of the pledge of the
Capital Stock of Subsidiaries of Holdings incorporated in such
jurisdictions, in form and substance reasonably satisfactory to the
Administrative Agent; and
(iv) the legal opinion of Xxxxx Xxxxxxx LLP, special counsel to
Parent, Holdings and its Subsidiaries, substantially in the form of
Exhibit F-3.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
61
(m) PLEDGED STOCK; STOCK POWERS; ACKNOWLEDGMENT AND CONSENT; PLEDGED
NOTES. The Administrative Agent shall have received (i) the certificates
representing the Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof, (ii) an Acknowledgment and Consent, substantially in the form of
Annex II to the Guarantee and Collateral Agreement, duly executed by any
issuer of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement that is not itself a party to the Guarantee and Collateral
Agreement and (iii) each promissory note, if any, pledged pursuant to the
Guarantee and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(n) FILINGS, REGISTRATIONS AND RECORDINGS. Each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under any Requirement of Law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 10.3), shall have been
filed, registered or recorded or shall have been delivered to the
Administrative Agent in proper form for filing, registration or
recordation.
(o) TITLE INSURANCE, SURVEYS AND FLOOD INSURANCE. (i) The
Administrative Agent shall have received, with respect to each Mortgaged
Property, either (A) an endorsement to each mortgagee's title insurance
policy previously delivered to the Administrative Agent or (B) a binding
marked up title commitment issued by First American Title Insurance Company
of New York (either directly or through authorized agents) in substantially
the same form as that previously delivered to the Administrative Agent
subject to subsequently filed Permitted Liens. Each such endorsement or
marked up title commitment shall (A) insure that the Mortgage insured by
such existing policy or marked up title commitment, as amended by the
relevant Mortgage Amendment, creates and continues to constitute a valid
first Lien on the Mortgaged Property described in such Mortgage, subject
only to Permitted Liens and such exceptions as were disclosed in such
endorsement or marked up title commitment; (B) modify the effective date of
such policy or commitment to be the date of recordation of the Mortgage
Amendment. The Administrative Agent shall have received evidence that all
title insurance premiums, recording fees and applicable mortgage recording
taxes have been paid.
(ii) the Administrative Agent shall have received reasonably
satisfactory evidence that the endorsements to the title policies or marked
commitments shall not contain any so-called "general survey exceptions".
(p) INSURANCE. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 9.4.
(q) RATINGS. On or after May 13, 2002, (i) no downgrading shall have
occurred in the rating accorded the debt securities of Parent or any of its
Subsidiaries by any "nationally recognized statistical rating organization"
as that term is defined by the SEC for purposes of Rule 436(g)(2) under the
Securities Act of 1933, as amended, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the debt securities of
Parent or any of its Subsidiaries.
62
8.3. CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) FOREIGN SUBSIDIARY OPINION. If such extension of credit is the
initial extension of credit to a Foreign Subsidiary Borrower, (i) such
Foreign Subsidiary Borrower shall have become a party hereto on the Closing
Date, or after the Closing Date pursuant to Section 13.1(b), (ii) the
Administrative Agent shall have received a Foreign Subsidiary Opinion in
respect of such Foreign Subsidiary Borrower and (iii) if by reason of the
incurrence of Indebtedness by such Foreign Subsidiary Borrower hereunder
such Foreign Subsidiary Borrower shall be required to Guarantee
Indebtedness under any Indenture, such Foreign Subsidiary Borrower shall
have become a Guarantor party to the Guarantee and Collateral Agreement.
Each borrowing by, and issuance of a Letter of Credit on behalf of, a Borrower
hereunder shall constitute a representation and warranty by Parent, Holdings and
such Borrower as of the date of such extension of credit that the conditions
contained in this Section 8.3 have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
Parent, Holdings and the Borrowers hereby jointly and severally agree
that, so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of Parent (with respect to Sections 9.1, 9.2, 9.3, 9.4, 9.5,
9.6, 9.7, 9.8 and 9.10 only), Holdings and each of the Borrowers shall and shall
cause each of their respective Subsidiaries to:
9.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. Deliver to each Agent
and each of the Lenders:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of Parent, consolidated statements of operations,
shareholders' equity and cash flows of Parent and its Subsidiaries for such
fiscal year and the related consolidated balance sheets of Parent and its
Subsidiaries as at the end of such fiscal year, setting forth in each case
in comparative form the corresponding consolidated figures for the
preceding fiscal year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall state that such consolidated financial statements fairly present in
all material respects the consolidated financial condition and results of
operations of Parent and its Subsidiaries as at the end of, and for, such
fiscal year in accordance with GAAP;
(b) as soon as available and in any event within 90 days after the end
of each fiscal year of Holdings, consolidated statements of operations,
shareholders' equity and cash flows of
63
Holdings and its Subsidiaries for such fiscal year and the related
consolidated balance sheets of Holdings and its Subsidiaries as at the end
of such fiscal year, setting forth in each case in comparative form the
corresponding consolidated figures for the preceding fiscal year,
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
such consolidated financial statements fairly present in all material
respects the consolidated financial condition and results of operations of
Holdings and its Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP, and a statement of such accountants to the effect
that, in making the examination necessary for their opinion, nothing came
to their attention that caused them to believe that Holdings was not in
compliance with Section 10.1 or Section 10.6, in each case insofar as such
Section relates to accounting matters;
(c) as soon as available and in any event within 90 days after the end
of each fiscal year of each of Texas Flags, Ltd. and Six Flags Over Xxxxxxx
XX, L.P., consolidated statements of operations, partners' equity and cash
flows of each of Texas Flags, Ltd. and Six Flags Over Xxxxxxx XX, L.P. and
its Subsidiaries for such fiscal year and the related consolidated balance
sheets of each of Texas Flags, Ltd. and Six Flags Over Xxxxxxx XX, L.P. and
its Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures for the
preceding fiscal year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall state that such consolidated financial statements fairly present in
all material respects the consolidated financial condition and results of
operations of each of Texas Flags, Ltd. and Six Flags Over Xxxxxxx XX, L.P.
and its Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP;
(d) as soon as available and in any event within 45 days after the end
of each quarterly fiscal period of each fiscal year of Parent, consolidated
statements of operations, shareholders' equity and cash flows of Parent and
its Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated balance sheets of Parent and its Subsidiaries, as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in the
preceding fiscal year (except that, in the case of balance sheets, such
comparison shall be to the last day of the prior fiscal year), accompanied
by a certificate of a Responsible Officer of Parent, which certificate
shall state that such consolidated financial statements fairly present in
all material respects the consolidated financial condition and results of
operations of Parent and its Subsidiaries, in each case in accordance with
GAAP, consistently applied, as at the end of, and for, such period (subject
to normal year-end audit adjustments);
(e) as soon as available and in any event within 45 days after the end
of each quarterly fiscal period of each fiscal year of Holdings,
consolidated statements of operations, shareholders' equity and cash flows
of Holdings and its Subsidiaries for such period and for the period from
the beginning of the respective fiscal year to the end of such period, and
the related consolidated balance sheets of Holdings and its Subsidiaries,
as at the end of such period, setting forth in each case in comparative
form the corresponding consolidated figures for the corresponding periods
in the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a Responsible Officer of Holdings, which
certificate shall state that such consolidated financial statements fairly
present in all material respects the consolidated financial condition and
results of operations of Holdings and its Subsidiaries, in each case in
accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
64
(f) concurrently with any delivery of financial statements under
clause (a), (b), (d) or (e) of this Section 9.1, a certificate of a
Responsible Officer of Parent or Holdings, as the case may be, (i) to the
effect that no Default or Event of Default has occurred and is continuing
(or, if any Default or Event of Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that
Holdings has taken or proposes to take with respect thereto) and (ii)
setting forth in reasonable detail the computations necessary to determine
whether Holdings and the Primary Borrower were in compliance with Sections
10.1, 10.5, 10.7(j) and 10.7(m) as of the end of the respective quarterly
fiscal period or fiscal year;
(g) as soon as available, and in any event no later than 45 days after
the end of each fiscal year of Holdings, a detailed consolidated budget for
the following fiscal year;
(h) within 45 days after the end of each of the first three fiscal
quarters of Holdings and within 90 days after each fiscal year of Holdings,
a narrative discussion and analysis of the financial condition and results
of operations of Holdings and its Subsidiaries for such fiscal period and,
if applicable, for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, as compared to the comparable
periods of the previous year;
(i) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, that Parent or Holdings
shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefor) or any national securities
exchange;
(j) promptly upon receipt thereof, copies of any management letters
prepared by Parent's or Holdings' independent public accountants with
respect to the audit of the financial statements of Parent and its
Subsidiaries or Holdings and its Subsidiaries;
(k) within 15 Business Days after the end of each of the months of
June, July, August, September and October, a performance report in respect
of the Parks detailing on a Park-by-Park basis attendance and revenue for
the preceding month and showing a comparison to budget and to the same
period in the prior year; and
(l) from time to time such other information regarding the financial
condition, operations, business or prospects of Parent or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA), or
compliance with the terms of this Agreement, as any Lender or the
Administrative Agent may reasonably request.
9.2. NOTICES OF MATERIAL EVENTS. Furnish the following to the
Administrative Agent in writing:
(a) promptly after any executive officer of Parent, Holdings or the
Primary Borrower has actual knowledge of facts that would give him or her
reason to believe that any Default or Event of Default has occurred, notice
of such Default or Event of Default;
(b) as soon as any executive officer of Parent, Holdings or the
Primary Borrower has actual knowledge of the facts that would give him or
her reason to know of the occurrence thereof, prompt notice of all legal or
arbitral proceedings, and of all proceedings by or before any governmental
or regulatory authority or agency, and of any material development in
respect of such legal or other proceedings, affecting Parent or any of its
Subsidiaries that, if adversely
65
determined, could reasonably be expected to result in aggregate liabilities
or damages in excess of $2,500,000 over available insurance or
indemnification by creditworthy third parties;
(c) as soon as possible, and in any event within ten days after
Parent, Holdings or the Primary Borrower knows or has reason to believe
that any ERISA Event has occurred or exists, notice of the occurrence of
such ERISA Event (and as soon as practicable thereafter, a copy of any
report or notice required to be filed with or given to the PBGC by Parent,
Holdings or an ERISA Affiliate with respect to such ERISA Event), if such
ERISA Event could reasonably be expected to result in aggregate liabilities
in excess of $2,500,000;
(d) as soon as possible, and in any event within ten days prior to the
incurrence by Parent of Indebtedness pursuant to any Indenture, notice of
such incurrence;
(e) prompt notice of the assertion of any Environmental Claim by any
Person against, or with respect to the activities of, Parent or any of its
Subsidiaries and notice of any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations, other
than any Environmental Claim or alleged violation that, if adversely
determined, could (either individually or in the aggregate) reasonably be
expected to result in remediation costs of more than $2,500,000 or
materially adversely affect the operation of any Park; and
(f) prompt notice of any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.2 shall be accompanied by a
statement of a Responsible Officer of Parent, Holdings or the Primary Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
9.3. EXISTENCE, ETC.
(a) Preserve and maintain its legal existence (except in the case of
Inactive Subsidiaries) and all material permits, licenses and other Governmental
Authority authorizations necessary to enable it to operate each of its Parks
(other than seasonal permits and liquor licenses, which it anticipates will be
obtained in the normal course); PROVIDED that nothing in this Section 9.3 shall
prohibit any transaction expressly permitted under Section 10.4; PROVIDED,
FURTHER, that any direct Subsidiary of Parent may be merged or consolidated with
or into: (i) Parent, if Parent shall be the continuing or surviving corporation
or (ii) any other Subsidiary of Parent which is a Domestic Subsidiary, PROVIDED
that if any such transaction shall be between a Subsidiary of Parent and a
Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or
surviving corporation;
(b) pay and discharge all Federal income taxes and all other material
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its Property prior to the date on which penalties
attach thereto, except for any such obligation, tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained to the extent required
by GAAP; PROVIDED that, with respect to taxes assessed against Real Properties,
such taxes can be contested without payment under applicable law;
(c) maintain and preserve all of its Properties material to the
conduct of the Business of Parent, Holdings and its Subsidiaries (taken as a
whole) in good working order and condition;
66
(d) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP consistently applied; and
(e) permit representatives of any Lender or the Administrative Agent,
upon reasonable notice and during normal business hours (and, except if a
Default shall have occurred and be continuing, not more frequently than once
each calendar quarter), to examine, copy and make extracts from its books and
records, to visit and inspect any of its Properties, and to discuss its
business, finances, condition and affairs with its officers and independent
accountants and the general managers of its Parks, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
9.4. INSURANCE. Maintain insurance with financially sound and
reputable insurance companies, in amounts and against such losses and risks as
Parent or Holdings shall from time to time reasonably determine is sufficient
based upon its experience and industry practice to protect Parent, Holdings and
their respective Subsidiaries and their respective businesses, PROVIDED that
Parent and Holdings will in any event maintain (with respect to itself and each
of its Domestic Subsidiaries):
(a) PROPERTY INSURANCE -- insurance against loss or damage covering
all of the tangible real and personal Property and improvements of Parent,
Holdings and each of its Subsidiaries by reason of any Peril in such
amounts (subject, in the case of Property insurance (other than earthquake
and flood insurance) to deductibles not exceeding $2,000,000, in the case
of earthquake insurance to deductibles not exceeding 7.5% of the value of
the insured Property, in the case of flood insurance to deductibles not
exceeding 5% of the value of the insured Property, or, in any such case,
such higher deductible as shall be reasonably satisfactory to the
Administrative Agent) as shall be reasonable and customary and sufficient
to avoid the insured named therein from becoming a co-insurer of any loss
under such policy but in any event in an amount (A) in the case of fixed
assets and equipment (including, without limitation, vehicles), at least
equal to 66 2/3% of the actual replacement cost of such assets (including,
without limitation, foundation, footings but excluding excavation costs),
subject to deductibles as aforesaid and (B) in the case of inventory, not
less than the fair market value thereof, subject to deductibles as
aforesaid.
(b) AUTOMOBILE LIABILITY INSURANCE FOR BODILY INJURY AND PROPERTY
DAMAGE -- insurance against liability for bodily injury and Property damage
in respect of all vehicles (whether owned, hired or rented by Parent,
Holdings or any of its Subsidiaries) in such amounts as are then customary
for vehicles used in connection with similar businesses, but in any event
to the extent required by applicable law (subject to deductibles not
exceeding $1,000,000 or such higher deductibles or shall be reasonably
satisfactory to the Administrative Agent).
(c) COMMERCIAL GENERAL LIABILITY INSURANCE -- insurance against
liability for claims for bodily injury, death or Property damage occurring
on, in or about the Real Properties (and adjoining streets, sidewalks and
waterways, but only to the extent of the legal liability of Parent,
Holdings and its Subsidiaries therefor) of Parent, Holdings and its
Subsidiaries, in such amounts as are then customary for similar businesses
in the jurisdictions where such businesses are located (subject to
deductibles or self insurance retentions not exceeding $2,000,000, or such
higher deductible as shall be reasonably satisfactory to the Administrative
Agent).
(d) WORKERS' COMPENSATION INSURANCE -- workers' compensation insurance
(including, without limitation, Employers' Liability Insurance) to the
extent required by applicable law (subject to deductibles not exceeding
$1,000,000, or such higher deductible as shall be reasonably satisfactory
to the Administrative Agent).
67
(e) PRODUCT LIABILITY INSURANCE -- insurance against liability for
claims for bodily injury, death or Property damage resulting from the use
of products sold by Parent, Holdings or any of its Subsidiaries in such
amounts as are then customarily maintained by responsible persons engaged
in businesses similar to that of Parent, Holdings and its Subsidiaries
(subject to deductibles not exceeding $750,000, or such higher deductible
as shall be reasonably satisfactory to the Administrative Agent).
(f) BUSINESS INTERRUPTION INSURANCE -- insurance against loss of
operating income (in an aggregate amount not less than $40,000,000, as to
Parent, Holdings and its Subsidiaries as a whole, and subject to a
deductible, or self-insured amount, not in excess of $2,000,000, or such
higher deductible as shall be reasonably satisfactory to the Administrative
Agent) by reason of any Peril that causes direct damages to any Property
which results in an interruption of Business.
Such insurance shall be written by financially responsible companies
selected by Holdings and having an A. M. Best rating of "A-" or better and
being in a financial size category of VIII or larger, or by other companies
reasonably acceptable to the Required Lenders, and (other than workers'
compensation) shall name the Administrative Agent as loss payee (to the
extent covering risk of loss or damage to tangible Property), as an
additional insured as its interests may appear (with respect to Commercial
General Liability, Products Liability and Automobile Policies), as
mortgagee (on policies covering Real Properties), and as an additional
insured as its interests may appear (to the extent covering any other
risk). Each policy referred to in this Section shall provide that it will
not be canceled or reduced, or allowed to lapse without renewal, except
after not less than 30 days' notice to the Administrative Agent and shall
also provide that the interests of the Administrative Agent and the Lenders
shall not be invalidated by any act or negligence of Parent, Holdings or
any Person having an interest in any Property covered by a Mortgage nor by
occupancy or use of any such Property for purposes more hazardous than
permitted by such policy nor by any foreclosure or other proceedings
relating to such Property. Parent or Holdings will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
Notwithstanding anything to the contrary contained in this Section
9.4, the obligations of Holdings, each Borrower and their respective
Subsidiaries to obtain and maintain insurance covering war risk and related
perils (including acts of terrorism), earthquakes and (to the extent
reasonably satisfactory to the Administrative Agent) floods shall be
limited to such insurance that is available in the commercial markets at a
cost which, in the good faith judgment of the Board of Directors of
Holdings, is reasonable.
On each date that is the day 3 days prior to the anniversary date (the
"DELIVERY DATE") of any insurance policy (including, without limitation,
any flood insurance policy previously delivered to the Administrative Agent
pursuant to the Existing Credit Agreement or obtained pursuant to Section
8.2(o)(iii)) of Parent, Holdings or any of its Subsidiaries (the
"ANNIVERSARY DATE") (commencing with the first Delivery Date after the date
hereof), Parent or Holdings will deliver to the Administrative Agent
certificates or binders of insurance evidencing that all insurance required
to be maintained by Parent, Holdings or any of its Subsidiaries hereunder
will be in effect through the next Anniversary Date in the calendar year
following the current Delivery Date, subject only to the payment of
premiums as they become due, PROVIDED that not less than 45 days prior to
such Anniversary Date Parent or Holdings will provide reasonable evidence
to the Administrative Agent that it is in the process of renewing such
insurance policy for such period. In addition, neither Parent nor Holdings
will modify any of the provisions of any policy with respect to Property
insurance without delivering the original copy of the endorsement
reflecting such modification to the Administrative Agent accompanied by a
written report of AON Risk
68
Services, Inc., or any other firm of independent insurance brokers of
nationally recognized standing, stating that, in their opinion, such policy
(as so modified) is in compliance with the provisions of this Section.
Neither Parent, Holdings nor any of its Subsidiaries (other than Excluded
Foreign Subsidiaries) will obtain or carry separate insurance concurrent in
form or contributing in the event of loss with that required by this
Section unless the Administrative Agent is the named insured thereunder,
with loss payable as provided herein. Parent or Holdings will immediately
notify the Administrative Agent whenever any such separate insurance is
obtained and shall deliver to the Administrative Agent the certificates
evidencing the same.
Without limiting the obligations of Parent or Holdings under the
foregoing provisions of this Section, in the event Parent, Holdings or any
of its Subsidiaries shall fail to maintain in full force and effect
insurance as required by the foregoing provisions of this Section, then the
Administrative Agent may, but shall have no obligation so to do, after
prior written notice to Holdings, procure insurance covering the interests
of the Lenders and the Administrative Agent in such amounts and against
such risks as the Administrative Agent (or the Required Lenders) shall deem
appropriate, and Parent or Holdings shall reimburse the Administrative
Agent in respect of any premiums paid by the Administrative Agent in
respect thereof.
For purposes hereof, the term "PERIL", means, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles
and smoke and all other perils covered by the "all-risk" endorsement in use
when such insurance is obtained in the jurisdictions where the Properties
of Parent, Holdings and its Subsidiaries are located.
9.5. COMPLIANCE WITH CONTRACTUAL OBLIGATIONS AND REQUIREMENTS OF LAW.
Comply with Contractual Obligations and Requirements of Laws, unless failure to
comply with such Contractual Obligations or Requirements of Law could not
(either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect.
9.6. ADDITIONAL COLLATERAL, ETC. (a) With respect to any personal
Property acquired after the Amendment and Restatement Effective Date by Parent,
Holdings or any of its Subsidiaries (other than (w) any personal Property
described in paragraph (c) of this Section, (x) any Property subject to a Lien
expressly permitted by Section 10.3(h), (y) any Property acquired by an Excluded
Foreign Subsidiary and (z) any Property acquired after the date hereof to the
extent that the creation of a security interest therein would be prohibited by a
Contractual Obligation binding on Parent, Holdings or the Subsidiary that is the
owner of such Property, PROVIDED that such Contractual Obligation existed at the
time such Property was acquired and was not entered into in anticipation of such
acquisition) as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent reasonably deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a security interest in such Property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in such Property
(subject to Permitted Liens), including without limitation, the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.
(b) With respect to any fee interest in any Real Property having a
value (together with improvements thereof) of at least $5,000,000 acquired after
the Amendment and Restatement Effective Date by Parent, Holdings or any of its
Subsidiaries (other than any such Real Property owned by an Excluded Foreign
Subsidiary, Properties subject to the Spanish WB Agreements, Properties subject
to the
69
Partnership Parks Agreements or Marine World Agreements or Properties subject to
a Lien expressly permitted by Section 10.3(h)), promptly (i) execute and deliver
a first priority Mortgage (subject to Permitted Liens) in favor of the
Administrative Agent, for the benefit of the Lenders, covering such Real
Property, (ii) if reasonably requested by the Administrative Agent, provide the
Administrative Agent with (x) mortgagee title and extended coverage insurance
insuring the first priority Lien of the Mortgage upon such Real Property in an
amount at least equal to the purchase price of such Real Property (or such
lesser amount as shall be reasonably acceptable to the Administrative Agent) as
well as a current or updated ALTA survey thereof, certified to the
Administrative Agent and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent (PROVIDED, that Parent, Holdings and its Subsidiaries
shall only be required to use commercially reasonable good faith efforts to
obtain such consents and estoppels) and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary or an Inactive Subsidiary) created or acquired after the Amendment
and Restatement Effective Date (which, for the purposes of this paragraph, shall
include any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary
or an Inactive Subsidiary), by Parent, Holdings or any of its Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest (subject to Permitted
Liens) in the Capital Stock of such new Subsidiary that is owned by Parent,
Holdings or any of its Subsidiaries, (ii) deliver to the Administrative Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of Parent,
Holdings or such Subsidiary, as the case may be, and (iii) with respect to any
such new Subsidiary which is a Subsidiary of Holdings or any of its
Subsidiaries, cause such new Subsidiary (A) to become a party to the Guarantee
and Collateral Agreement and (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest (subject to Permitted Liens) in the Collateral
described in the Guarantee and Collateral Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if reasonably requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new Foreign Subsidiary (other than the joint
venture created pursuant to the Spanish WB Agreements) created or acquired after
the Amendment and Restatement Effective Date by Parent, Holdings or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement or such other documents as the Administrative Agent
deems necessary or advisable in order to grant to the Administrative Agent, for
the benefit of the Lenders, a perfected first priority security interest
(subject to Permitted Liens) in the Capital Stock of such new Subsidiary that is
owned by Parent, Holdings or any of its Subsidiaries (other than any Excluded
Foreign Subsidiaries), PROVIDED that in no event shall more than 65% of the
total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be
required to be so pledged, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of Parent,
Holdings or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the opinion of the Administrative Agent,
70
desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(e) In the event any Foreign Subsidiary of Holdings shall propose to
become a Foreign Subsidiary Borrower, Holdings shall give notice of such fact to
the Administrative Agent, including a summary of the Properties owned by such
Foreign Subsidiary and its Subsidiaries; within 10 days after receipt of such
information, the Administrative Agent shall provide such information to the
Lenders; and if, within 10 days after such information is provided to the
Lenders, Lenders whose Aggregate Exposure Percentages equal or exceed 25% shall
so request by written notice to the Administrative Agent, the Administrative
Agent shall so advise Holdings, and Holdings shall (i) promptly cause such
Foreign Subsidiary and, if applicable, the Subsidiaries thereof, to create in
favor of the Administrative Agent, as security for all obligations of such
Foreign Subsidiary under this Agreement and the other Loan Documents, a security
interest in substantially all of the Property of such Foreign Subsidiary and, if
applicable, Subsidiaries thereof, except, in each case, with respect to Property
as to which the Administrative Agent determines, in its reasonable discretion,
that the cost or difficulty of obtaining a security interest therein would be
disproportionate to the value of such security interest, (ii) cause each
Subsidiary, if any, of such Foreign Subsidiary to provide guarantees to the
Administrative Agent in respect of the obligations of such Foreign Subsidiary
under this Agreement and the other Loan Documents and (iii) provide to the
Administrative Agent and the Lenders such legal opinions with respect to such
security interests and guarantees as the Administrative Agent shall reasonably
request.
(f) Notwithstanding the provisions of the foregoing paragraphs (c) and
(d), neither Parent nor Holdings shall be required to create, or to cause their
respective Subsidiaries to create, a security interest in the Capital Stock of
any Subsidiary acquired after the date hereof to the extent that the creation of
such a security interest would be prohibited by a Contractual Obligation binding
on Parent, Holdings or the Subsidiary that is the owner of such Capital Stock;
PROVIDED, that such Contractual Obligation either (i) was negotiated in good
faith in an arm's length transaction with a Person that is not an Affiliate of
Parent or Holdings or (ii) existed at the time such Subsidiary was acquired and
was not entered into in anticipation of such acquisition.
9.7. FURTHER ASSURANCES. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take all such actions, as the Administrative Agent may reasonably
request for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other Property or assets hereafter acquired by
Parent, Holdings or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative
Agent or any Lender of any power, right, privilege or remedy pursuant to this
Agreement or the other Loan Documents which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority and
Holdings will execute and deliver, or will cause the execution and delivery of,
all applications, certifications, instruments and other documents and papers
that the Administrative Agent or such Lender may be required to obtain from
Holdings or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.
9.8. ENVIRONMENTAL LAWS. Except to the extent that, in the aggregate,
the failure to do so could not reasonably be expected to have a Material Adverse
Effect: (a) comply with, and ensure compliance by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply with and
71
maintain, and ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, and (b) conduct and complete
all investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
9.9. CLEAN DOWN. During each calendar year, cause the aggregate
outstanding principal amount of Revolving Credit Loans and Swing Line Loans not
to exceed $0 for at least 30 consecutive days during the period in such calendar
year beginning on June 1 and ending on November 1.
9.10. EQUITY CONTRIBUTIONS AND PAYMENTS. To the extent that, for
purposes of calculating the Consolidated Fixed Charges Coverage Ratio, Holdings
excluded cash dividends or other cash payments made by Holdings to Parent to
enable Parent to pay distributions and other required payments under the
Partnership Parks Agreements or in respect of Subordinated Parent Advances, no
later than January 31 of the calendar year immediately following the year in
which such excluded cash dividends or payments are made, (a) in the case of
Parent, make a cash contribution to Holdings as equity in an amount at least
equal to the aggregate amount of such excluded cash dividends and payments, (b)
in the case of Holdings, contribute or advance the entire cash amount referred
to in clause (a) above to the Primary Borrower as cash equity or a cash advance
and (c) in the case of the Primary Borrower, apply such cash amount to the
payment of any outstanding Revolving Credit Loans and Multicurrency Loans the
proceeds of which funded such excluded cash dividends and payments to Parent
(without any permanent reduction in the Total Revolving Credit Commitments or
the Total Multicurrency Commitments).
SECTION 10. NEGATIVE COVENANTS
Holdings and the Borrowers and, with respect to Section 10.14(a) only,
Parent, hereby jointly and severally agree that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, each of Holdings and each
of the Borrowers and, with respect to Section 10.14(a) only, Parent, shall not,
and shall not permit any Subsidiary to, directly or indirectly:
10.1. CERTAIN FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
Holdings ending with any fiscal quarter set forth below to exceed the ratio set
forth below opposite such fiscal quarter:
CONSOLIDATED
FIRST QUARTER LEVERAGE RATIO
------------- --------------
FQ3 2002 3.00 to 1.00
FQ4 2002 3.00 to 1.00
FQ1 2003 3.00 to 1.00
FQ2 2003 3.00 to 1.00
FQ3 2003 3.00 to 1.00
FQ4 2003 3.00 to 1.00
FQ1 2004 3.00 to 1.00
FQ2 2004 3.00 to 1.00
FQ3 2004 2.75 to 1.00
FQ4 2004 2.75 to 1.00
FQ1 2005 2.75 to 1.00
72
CONSOLIDATED
FIRST QUARTER LEVERAGE RATIO
------------- --------------
FQ2 2005 2.75 to 1.00
FQ3 2005 2.75 to 1.00
FQ4 2005 2.75 to 1.00
FQ1 2006 2.75 to 1.00
FQ2 2006 2.75 to 1.00
FQ3 2006 2.50 to 1.00
FQ4 2006 2.50 to 1.00
FQ1 2007 2.50 to 1.00
FQ2 2007 2.50 to 1.00
FQ3 2007 2.50 to 1.00
FQ4 2007 2.50 to 1.00
FQ1 2008 2.50 to 1.00
FQ2 2008 2.50 to 1.00
FQ3 2008 2.50 to 1.00
FQ4 2008 2.50 to 1.00
FQ1 2009 2.50 to 1.00
FQ2 2009 2.50 to 1.00
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
Holdings ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
-------------- -----------------------
FQ3 2002 3.00 to 1.00
FQ4 2002 3.00 to 1.00
FQ1 2003 3.00 to 1.00
FQ2 2003 3.00 to 1.00
FQ3 2003 3.50 to 1.00
FQ4 2003 3.50 to 1.00
FQ1 2004 3.50 to 1.00
FQ2 2004 3.50 to 1.00
FQ3 2004 4.00 to 1.00
FQ4 2004 4.00 to 1.00
FQ1 2005 4.00 to 1.00
FQ2 2005 4.00 to 1.00
FQ3 2005 4.00 to 1.00
FQ4 2005 4.00 to 1.00
FQ1 2006 4.00 to 1.00
FQ2 2006 4.00 to 1.00
FQ3 2006 4.00 to 1.00
FQ4 2006 4.00 to 1.00
FQ1 2007 4.00 to 1.00
FQ2 2007 4.00 to 1.00
FQ3 2007 4.00 to 1.00
FQ4 2007 4.00 to 1.00
FQ1 2008 4.00 to 1.00
73
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
-------------- -----------------------
FQ2 2008 4.00 to 1.00
FQ3 2008 4.00 to 1.00
FQ4 2008 4.00 to 1.00
FQ1 2009 4.00 to 1.00
FQ2 2009 4.00 to 1.00
(c) CONSOLIDATED DEBT SERVICE COVERAGE RATIO. Permit the Consolidated
Debt Service Coverage Ratio for any period of four consecutive fiscal quarters
of Holdings ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
CONSOLIDATED DEBT
FISCAL QUARTER SERVICE COVERAGE RATIO
-------------- ----------------------
FQ3 2002 3.00 to 1.00
FQ4 2002 3.00 to 1.00
FQ1 2003 3.00 to 1.00
FQ2 2003 3.00 to 1.00
FQ3 2003 3.50 to 1.00
FQ4 2003 3.50 to 1.00
FQ1 2004 3.50 to 1.00
FQ2 2004 3.50 to 1.00
FQ3 2004 3.50 to 1.00
FQ4 2004 3.50 to 1.00
FQ1 2005 3.50 to 1.00
FQ2 2005 3.50 to 1.00
FQ3 2005 3.50 to 1.00
FQ4 2005 3.50 to 1.00
FQ1 2006 3.50 to 1.00
FQ2 2006 3.50 to 1.00
FQ3 2006 3.50 to 1.00
FQ4 2006 3.50 to 1.00
FQ1 2007 3.50 to 1.00
FQ2 2007 3.50 to 1.00
FQ3 2007 3.50 to 1.00
FQ4 2007 3.50 to 1.00
FQ1 2008 3.50 to 1.00
FQ2 2008 3.50 to 1.00
FQ3 2008 3.50 to 1.00
FQ4 2008 3.50 to 1.00
FQ1 2009 3.50 to 1.00
FQ2 2009 3.50 to 1.00
(d) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio for any period of four consecutive fiscal quarters
of Holdings ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
74
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
-------------- ---------------------
FQ3 2002 1.15 to 1.00
FQ4 2002 1.15 to 1.00
FQ1 2003 1.15 to 1.00
FQ2 2003 1.15 to 1.00
FQ3 2003 1.15 to 1.00
FQ4 2003 1.15 to 1.00
FQ1 2004 1.15 to 1.00
FQ2 2004 1.15 to 1.00
FQ3 2004 1.20 to 1.00
FQ4 2004 1.20 to 1.00
FQ1 2005 1.20 to 1.00
FQ2 2005 1.20 to 1.00
FQ3 2005 1.25 to 1.00
FQ4 2005 1.25 to 1.00
FQ1 2006 1.25 to 1.00
FQ2 2006 1.25 to 1.00
FQ3 2006 1.25 to 1.00
FQ4 2006 1.25 to 1.00
FQ1 2007 1.25 to 1.00
FQ2 2007 1.25 to 1.00
FQ3 2007 1.25 to 1.00
FQ4 2007 1.25 to 1.00
FQ1 2008 1.25 to 1.00
FQ2 2008 1.25 to 1.00
FQ3 2008 1.25 to 1.00
FQ4 2008 1.25 to 1.00
FQ1 2009 1.25 to 1.00
FQ2 2009 1.25 to 1.00
10.2. INDEBTEDNESS. Create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of any Person outstanding on the date hereof and
listed on Schedule 10.2(b), and any Indebtedness of such Person incurred to
refinance any such outstanding Indebtedness, PROVIDED that the principal
amount of such refinancing Indebtedness does not exceed the amount of
Indebtedness being so refinanced and any costs and premiums associated with
such refinancing;
(c) Indebtedness of Holdings or any Subsidiary Guarantor to Holdings
or to any Subsidiary, and Guarantees by Holdings or any of its Subsidiaries
of obligations of Holdings or any Subsidiary Guarantor;
(d) Indebtedness of any Non-Guarantor Subsidiary that is a Domestic
Subsidiary to Holdings or to any Subsidiary, and Guarantees by Holdings or
any Subsidiary of Indebtedness of any such Non-Guarantor Subsidiary, in an
aggregate amount outstanding for all such Indebtedness and Guarantees
(without duplication) not exceeding at any time $50,000,000;
75
(e) Indebtedness of any Non-Guarantor Subsidiary which is both a
Wholly Owned Subsidiary and a Foreign Subsidiary (a "WHOLLY OWNED
NON-GUARANTOR FOREIGN SUBSIDIARY") to any other Wholly Owned Non-Guarantor
Foreign Subsidiary, and Guarantees by any Wholly Owned Non-Guarantor
Foreign Subsidiary of obligations of any other Wholly Owned Non-Guarantor
Foreign Subsidiary;
(f) (i) Indebtedness consisting of Purchase Money Indebtedness and
Capital Lease Obligations incurred after the date hereof in an aggregate
principal amount not in excess of $85,000,000 at any one time outstanding,
and (ii) any Indebtedness incurred to refinance the Indebtedness described
in the foregoing clause (i), PROVIDED that the principal amount of such
refinancing Indebtedness does not exceed the amount of the Indebtedness
being so refinanced and any costs and premiums associated therewith;
(g) (i) Indebtedness of any Person outstanding on the date on which
such Person becomes a Subsidiary of Holdings; PROVIDED, that (A) such
Indebtedness was not created in connection with, or in anticipation of,
such acquisition and (B) the amount of such Indebtedness is not increased
thereafter, and (ii) any Indebtedness incurred to refinance the
Indebtedness described in the foregoing clause (i), PROVIDED that the
principal amount of such refinancing Indebtedness does not exceed the
amount of the Indebtedness being so refinanced and any costs and premiums
associated therewith;
(h) Indebtedness of any Foreign Subsidiaries representing Investments
permitted by Section 10.7(m); and
(i) Indebtedness in an aggregate principal amount not in excess of
$25,000,000 at any one time outstanding incurred in connection with the
Jazzland Acquisition.
10.3. LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its Property, whether now owned or hereafter acquired, except the
following ("PERMITTED LIENS"):
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed on Schedule
10.3(b) and any extension, renewal or replacement thereof; PROVIDED that
such extension renewal or replacement does not increase the outstanding
principal amount of the Indebtedness secured thereby except by the amount
of any costs and premiums associated therewith;
(c) Liens imposed by any Governmental Authority for taxes, assessments
or charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of Holdings or the affected Subsidiaries, as the
case may be, to the extent required by GAAP or, in the case of any Foreign
Subsidiary, generally accepted accounting principles in effect from time to
time in the jurisdiction of organization of such Foreign Subsidiary;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's, brokers' or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that are
being contested in good faith and by appropriate proceedings, and Liens
securing judgments but only to the extent for an amount and for a period
not resulting in an Event of Default under clause (j) of Section 11;
76
(e) pledges or deposits under workers' compensation, unemployment
insurance and other social security legislation (other than ERISA);
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (including any precautionary Uniform
Commercial Code financing statements filed by a lessor with respect to any
equipment lease), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the Property subject thereto or
interfere in any material respect with the ordinary conduct of the Business
of Holdings or any of its Subsidiaries;
(h) Liens securing Purchase Money Indebtedness or Capital Lease
Obligations to the extent such Indebtedness is permitted to be incurred
under Section 10.2(f); PROVIDED, that such Liens shall encumber only the
Property that is the subject of such Purchase Money Indebtedness or Capital
Lease Obligations;
(i) Liens securing Indebtedness to the extent such Indebtedness is
permitted under Section 10.2(g); PROVIDED, that such Liens shall encumber
only the Property that is the subject of such Indebtedness; and
(j) Liens pursuant to the Marine World Agreements or pursuant to
leases, concessions and similar arrangements, or other arrangements entered
into in the ordinary course of business by Holdings and its Subsidiaries
that could not reasonably be expected to have a Material Adverse Effect.
10.4. PROHIBITION OF FUNDAMENTAL CHANGES.
(a) MERGERS. Enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), except that Holdings may liquidate or dissolve any
Inactive Subsidiary.
(b) RESTRICTIONS ON ACQUISITIONS. Acquire any business or Property
from, or Capital Stock of, or be a party to any acquisition of, any Person
except for (i) purchases of inventory and other Property to be sold or used in
the ordinary course of business, (ii) Investments permitted under Sections
10.4(e) and 10.7 and (iii) Capital Expenditures (to the extent the making of
such Capital Expenditures will not result in a violation of any of the
provisions of Section 10.1 or Section 10.6).
(c) RESTRICTIONS ON DISPOSITIONS. Consummate any Disposition other
than (i) any Disposition of any inventory or other Property Disposed of in the
ordinary course of business, (ii) during any fiscal year, up to $10,000,000 of
sales of used equipment or other Property not used in the business of Holdings
and its Subsidiaries, (iii) any Disposition of any Property to Holdings or a
Wholly Owned Subsidiary of Holdings which is a Subsidiary Guarantor or the
Primary Borrower, (iv) any Disposition of any Property to a Foreign Subsidiary,
PROVIDED that the book value of the Property so Disposed of shall be deemed to
constitute an Investment under Section 10.7(m), (v) any Property swap or
exchange entered into pursuant to the Marine World Agreements, (vi) the sale
(whether through a sale, swap or exchange) of any timeshare in any of the
campground parks permitted under Section 10.4(e)(v), and (vii) the sale of
77
other Property having a fair market value not to exceed $25,000,000 in the
aggregate for any fiscal year of Holdings.
(d) SALE AND LEASEBACK. Enter into any transaction pursuant to which
it shall convey, sell, transfer or otherwise dispose of any Property and, as
part of the same transaction or series of transactions, rent or lease as lessee
or similarly acquire the right to possession or use of, such Property, or other
Property which it intends to use for the same purpose or purposes as such
Property, to the extent such transaction gives rise to Indebtedness, unless any
Indebtedness arising in connection with such transaction shall be permitted
under Section 10.2(f).
(e) CERTAIN PERMITTED TRANSACTIONS. Notwithstanding the foregoing
provisions of this Section 10.4:
(i) INTERCOMPANY MERGERS. Any Subsidiary of Holdings may be merged
or consolidated: (A) with or into any other Subsidiary of Holdings which is
a Domestic Subsidiary, PROVIDED that if any such transaction shall be
between a Subsidiary and a Subsidiary Guarantor, such Subsidiary Guarantor
shall be the continuing or surviving corporation, (B) in the case of any
Excluded Foreign Subsidiary, with or into any other Excluded Foreign
Subsidiary, if the continuing or surviving corporation is a Wholly Owned
Subsidiary and (C) in the case of any Non-Guarantor Subsidiary, with or
into any other Non-Guarantor Subsidiary, if the continuing or surviving
corporation is a Wholly Owned Subsidiary.
(ii) INTERCOMPANY DISPOSITIONS. Holdings, the Primary Borrower or
any Subsidiary of Holdings may Dispose of any or all of its Property (upon
voluntary liquidation or otherwise): (A) to the Primary Borrower or a
Subsidiary Guarantor, (B) to any Domestic Subsidiary of Holdings which is
not a Subsidiary Guarantor, PROVIDED that the aggregate book value of
assets Disposed of pursuant to this clause (B) shall not exceed $20,000,000
in any fiscal year, (C) in the case of any Excluded Foreign Subsidiary, to
any other Excluded Foreign Subsidiary which is a Wholly Owned Subsidiary
and (D) in the case of any Non-Guarantor Subsidiary, to any other
Non-Guarantor Subsidiary which is a Wholly Owned Subsidiary.
(iii) SUBSEQUENT ACQUISITIONS. Holdings, the Primary Borrower, any
Subsidiary Guarantor or any Foreign Subsidiary may acquire any amusement or
attraction park, and the related assets (and the assets of any related,
ancillary or complementary business), of any other Person (whether by way
of purchase of assets or stock, by merger or consolidation or otherwise)
after the date hereof (each, a "SUBSEQUENT ACQUISITION") with existing
cash, cash flow generated by operations, the Unused Equity Proceeds Amount,
Subordinated Parent Advances and/or the proceeds of Loans hereunder to the
extent permitted under this Agreement so long as:
(A) Holdings shall be in compliance with Section 10.1 at the
time of and after giving PRO FORMA effect to any such Subsequent
Acquisition, as if such Subsequent Acquisition had occurred on the first
day of the relevant calculation period provided for in Section 10.1,
PROVIDED, HOWEVER, that (x) any capital expenditures made prior to such
Subsequent Acquisition by the Person that is the subject thereof shall not
constitute Capital Expenditures hereunder and (y) any Indebtedness incurred
or repaid in connection with such Subsequent Acquisition shall be deemed to
have be incurred or repaid, as the case may be, on such first day, and (ii)
Holdings shall have delivered to the Administrative Agent, at least ten
Business Days prior to the date of any such Subsequent Acquisition, a
certificate of a Responsible Officer of Holdings setting forth (A)
computations in reasonable detail demonstrating satisfaction of the
foregoing conditions as at the date of such certificate and (B) the
respective amounts of cash, cash
78
flow generated by operations, the Unused Equity Proceeds Amount and the
proceeds of Loans hereunder being used to effect such Subsequent
Acquisition;
(B) such Subsequent Acquisition (if by purchase of assets,
merger or consolidation) shall be effected in such manner so that the
acquired business, and the related assets, are owned either by Holdings,
the Primary Borrower, a Subsidiary Guarantor or a Foreign Subsidiary and,
if effected by merger or consolidation involving Holdings, the Primary
Borrower, a Subsidiary Guarantor or a Foreign Subsidiary, then Holdings,
the Primary Borrower, such Subsidiary Guarantor or such Foreign Subsidiary
shall be the continuing or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Subsidiary of Holdings, a Wholly
Owned Subsidiary shall be the continuing or surviving entity; PROVIDED,
HOWEVER, that with respect to any Subsequent Acquisition effected in such
manner so that the acquired business, and the related assets, are owned by
a Foreign Subsidiary, such acquired business, and the related assets, shall
be located outside of the United States of America;
(C) Holdings shall deliver to the Administrative Agent (which
shall promptly forward copies thereof to each Lender) (i) as soon as
possible and in any event no later than ten days prior to the consummation
of each such Subsequent Acquisition (or such earlier date as shall be five
Business Days after the execution and delivery thereof), copies of the
respective agreements or instruments pursuant to which such Subsequent
Acquisition is to be consummated (including, without limitation, any
related management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments and all other
material ancillary documents to be executed or delivered in connection
therewith and (ii) promptly following request therefor (but in any event
within three Business Days following such request), copies of such other
information or documents (including, without limitation, environmental risk
assessments) relating to such Subsequent Acquisition as the Administrative
Agent or the Required Lenders shall have reasonably requested (and which is
available, or obtainable within such period by Holdings with reasonable
efforts);
(D) to the extent applicable, Holdings shall have complied
with the provisions of Section 9.6, including, without limitation, to the
extent not theretofore delivered, delivery to the Administrative Agent of
(x) the certificates evidencing 100% (or, in the case of any new Foreign
Subsidiary the Capital Stock of which is held by a Domestic Subsidiary,
65%) of the Capital Stock of any new Subsidiary formed or acquired in
connection with such Subsequent Acquisition, accompanied by undated stock
powers executed in blank, and (y) the agreements, instruments, opinions of
counsel and other documents required under Section 9.6;
(E) the aggregate Purchase Price for each such Subsequent
Acquisition shall not exceed $175,000,000 (inclusive of the aggregate
amount by which the Base Capital Expenditure Amount is increased pursuant
to Section 10.6 by reason of such Subsequent Acquisition);
(F) to the extent requested by Holdings, Holdings and the
Required Lenders shall have agreed to pro forma adjustments to be made in
determining Consolidated EBITDA after giving effect to such Subsequent
Acquisition; and
(G) immediately prior to such Subsequent Acquisition and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing.
79
(iv) OTHER ACQUISITIONS. Holdings or any Subsidiary of Holdings may
acquire (whether through an acquisition, swap or exchange) any amusement or
attraction park or portions thereof, and the related assets thereof,
pursuant to the Marine World Agreements.
(v) OTHER DISPOSITIONS. Holdings or any Subsidiary of Holdings may
Dispose of (whether through a sale, swap or exchange) (i) any timeshare in
any of the campground parks and (ii) Property that is the subject of the
Marine World Agreements to the extent such Dispositions are contemplated by
the Marine World Agreements.
(vi) PENDING ACQUISITIONS. Any Subsidiary of Holdings may effect the
Jazzland Acquisition.
10.5. RESTRICTED PAYMENTS. Declare or make any Restricted Payment,
except that so long as at the time thereof and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing, Holdings may:
(a) make Restricted Payments to Parent in cash to enable Parent to pay
out-of-pocket accounting fees, legal fees and other administrative expenses
incurred in the ordinary course of business pursuant to the Shared Services
Agreement;
(b) make Restricted Payments to Parent in respect of income tax
liabilities of Holdings and its Subsidiaries in accordance with the Tax
Sharing Agreement; and
(c) make Restricted Payments to Parent in cash to enable Parent to
pay:
(i) cash interest payable in respect of (A) Indebtedness
under the Parent Indentures outstanding on the date hereof, (B) up to
$150,000,000 aggregate principal amount of debt securities of Parent
issued under any Indenture so long as, after giving effect to the
incurrence of such Indebtedness (as if such Indebtedness had been
incurred on the first day of the applicable period of four consecutive
fiscal quarters), the interest expense associated therewith and the
use of proceeds thereof, the Loan Parties are in PRO FORMA compliance
with the Consolidated Fixed Charges Coverage Ratio and (C) any other
Indebtedness that refinances the Indebtedness under any Indenture of
the Parent and finances fees and expenses (including tender fees and
premiums) associated with such refinancing, PROVIDED that in the case
of the foregoing clauses (B) and (C), (w) there shall be no scheduled
payment of principal on such Indebtedness prior to the date that is
one year after the final maturity of the Tranche B Term Loans, (x) the
terms of such Indebtedness shall not, in the good faith judgment of
Parent, impose on Parent and its Subsidiaries covenants or events of
default that are in the aggregate materially more restrictive on
Parent and its Subsidiaries than those applicable under the Parent
Indenture dated as of February 11, 2002, (y) such Indebtedness shall
not be Guaranteed by any Loan Party and (z) such Indebtedness shall
not be secured by any Property of any Loan Party;
(ii) distributions and other required payments under the
Partnership Parks Agreements as in effect on the date hereof as the
same may be amended in a manner not adverse to the interests of the
Lenders, PROVIDED that any amendment that increases the financial
obligations of Parent and its Subsidiaries thereunder in any material
respect shall be approved by the Required Lenders;
80
(iii) cash dividends payable on Parent Preferred Stock
outstanding on the date hereof;
(iv) up to $75,000,000 of amounts payable in respect of any
refinancing or repayment of Indebtedness under any Indenture of
Parent, PROVIDED that such Restricted Payment is funded solely with
cash from operations of Holdings and its Subsidiaries; and
(v) up to $150,000,000 of amounts payable in respect of any
refinancing or repayment of Indebtedness under any Indenture of
Parent, PROVIDED that such Restricted Payment is funded solely with
the proceeds of Optional Term Loans.
Nothing herein shall be deemed to prohibit the payment of Restricted
Payments by any Subsidiary of Holdings to Holdings or to any other Wholly Owned
Subsidiary of Holdings which is a Subsidiary Guarantor or to the Primary
Borrower, or by an Excluded Foreign Subsidiary to any other Subsidiary of
Holdings.
10.6. CAPITAL EXPENDITURES. Make or commit to make any Capital
Expenditure (Discretionary), except Capital Expenditures (Discretionary) of
Holdings and its Subsidiaries not exceeding the Base Capital Expenditure Amount
during any fiscal year or period of Holdings; PROVIDED, that (i) any such amount
referred to above, if not so expended in the fiscal year or period for which it
is permitted, may be carried over for expenditure in the next succeeding fiscal
year and (ii) Capital Expenditures (Discretionary) made during any fiscal year
shall be deemed made, first, in respect of amounts carried over from the prior
fiscal year pursuant to subclause (i) above and, second, in respect of amounts
permitted for such fiscal year as provided above; PROVIDED, FURTHER, that the
foregoing shall not prohibit Holdings from making any Capital Expenditures
constituting Marine World Contributed Capital Expenditures to the extent
permitted as an Investment under Section 10.7(n). For purposes of the foregoing,
the "BASE CAPITAL EXPENDITURE AMOUNT" for any fiscal year shall be (a) in the
case of fiscal year 2002 (commencing with the Amendment and Restatement
Effective Date and ending on December 31, 2002), $150,000,000 and (b) in the
case of any fiscal year thereafter, $100,000,000, PLUS, in each case, with
respect to each fiscal year in which a Subsequent Acquisition is consummated and
the immediately following fiscal year, an amount for each such fiscal year equal
to the lesser of (1) 25% of the aggregate Purchase Price of such Subsequent
Acquisition and (2) $175,000,000 less the aggregate Purchase Price of such
Subsequent Acquisition, in each case, for purposes of this clause (b), such
Purchase Price to be calculated without giving effect to the parenthetical in
Section 10.4(e)(iii)(E).
10.7. INVESTMENTS. Make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified on
Schedule 10.7 (a);
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by Holdings and its Subsidiaries in the Primary
Borrower and Subsidiary Guarantors, including Guarantees by Holdings or any
of its Subsidiaries of obligations of Holdings, the Primary Borrower or any
Subsidiary Guarantor;
(e) Investments by Foreign Subsidiaries in Wholly Owned Subsidiaries
which are Foreign Subsidiaries, including Guarantees by Foreign
Subsidiaries of obligations of other Wholly Owned Subsidiaries which are
Foreign Subsidiaries;
81
(f) Hedging Agreements entered into in the normal course of business
and consistent with industry practice, PROVIDED that the notional amount of
all currency exchange rate Hedging Agreements shall not exceed $40,000,000;
(g) Disposition Investments received in connection with any
Disposition permitted under Section 10.4 or any Disposition to which the
Required Lenders shall have consented in accordance with Section 13.1;
(h) any Acquisition permitted by Section 10.4(b)(iv) or 10.4(e);
(i) Investments in an aggregate amount of up to but not exceeding
$100,000 during any fiscal year in 000 Xxxx 00xx Xxxxxx Associates L.P.;
(j) additional Investments up to but not exceeding $50,000,000 at any
time outstanding;
(k) (i) loans to officers, directors and employees of Holdings or any
of its Subsidiaries in an aggregate amount (as to all such officers,
director and employees) up to $1,000,000 at any one time outstanding and
(ii) loans to employees of Holdings and its Subsidiaries under any
incentive stock option plan with terms no more favorable to employees than
those applicable under Parent's 1998 Stock Option Plan; PROVIDED, that the
proceeds of loans made pursuant to this clause (ii) are received by
Holdings as capital contributions;
(l) Investments constituting (i) contributions to the equity of Parque
Tematico de Madrid, S.A., whether directly or through the joint venture
contemplated by the Spanish WB Agreements, in an aggregate amount of up to
but not exceeding $9,500,000 in the aggregate, PLUS all contributions
required by Holdings or any of its Subsidiaries to be made to said entity
in the event the manager thereof elects to build a water park and (ii)
contributions to such Spanish joint venture as contemplated by the Spanish
WB Agreements and additional Investments therein not exceeding $2,000,000
in the aggregate at any time outstanding;
(m) Investments, including, without limitation, the aggregate book
value of Property transferred in transactions permitted by Section
10.4(c)(iv), by Holdings and its Domestic Subsidiaries in Holdings' Wholly
Owned Subsidiaries which are Foreign Subsidiaries in an aggregate amount
not exceeding $400,000,000 at any time outstanding; and
(n) Investments by Holdings or any Domestic Subsidiary constituting
the contribution to Authority of the Marine World Contributed Capital
Expenditures in an aggregate amount of up to but not exceeding $20,000,000.
10.8. PREPAYMENT OF CERTAIN INDEBTEDNESS. Purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of, or enter into any
derivative transaction or similar transaction obligating Holdings or any of its
Subsidiaries to make payments to any other Person as a result of a change in
market value of, Indebtedness outstanding under any Indenture.
10.9. TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
Property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate unless such transaction is: (a)
otherwise permitted under this Agreement, (b) in the ordinary course of business
of Holdings, such Borrower or such Subsidiary, as the case may be, and (c) upon
fair and reasonable terms no less favorable to Holdings,
82
such Borrower or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person that is not an Affiliate.
Notwithstanding the foregoing, (i) any Affiliate who is an individual may serve
as a director, officer or employee of Holdings or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity, (ii)
Holdings and its Subsidiaries may enter into transactions (other than extensions
of credit by Holdings or any of its Subsidiaries to an Affiliate) providing for
the leasing of Property, the rendering or receipt of services or the purchase or
sale of inventory and other Property in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to Holdings and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate, (iii) Holdings or any of its Subsidiaries may make an Acquisition of
assets of any Person which is an Affiliate solely by reason of such Person being
controlled by Holdings or any of its Subsidiaries and may make Investments in
such Person, PROVIDED that such Acquisitions and Investments are (A) permitted
under Section 10.4(e)(iii) or 10.7 and (B) made upon fair and reasonable terms
no less favorable to Holdings or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate, (iv) Holdings or any of its Subsidiaries may enter into any
transaction required of it pursuant to the Spanish WB Agreements or the Marine
World Agreements or in connection with the Jazzland Acquisition and (v) Holdings
and its Subsidiaries may be parties to and may perform their respective
obligations under the Shared Services Agreement and the Tax Sharing Agreement.
10.10. CHANGES IN FISCAL PERIODS. Permit the fiscal year of Holdings
to end on a day other than December 31 or change Holdings' method of determining
fiscal quarters.
10.11. CERTAIN RESTRICTIONS. Enter into, after the date hereof, any
indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property, other than any such prohibition or
restraint (a) set forth in any agreement providing for the disposition of
Property (so long as such prohibition or restraint relates only to the Property
to be disposed of), (b) set forth in any of the Loan Documents, any Indenture
(so long as such prohibition or restraint is not, in the good faith judgment of
Parent, more restrictive than those applicable under the Parent Indenture dated
as of February 11, 2002), or any other document relating to any existing
Indebtedness or any Indebtedness referred to in Section 10.2(g)(i) (and any
comparable prohibitions or restraints in any document governing any Indebtedness
incurred to refinance any of the foregoing, so long as such prohibitions or
restraints are, in the good faith judgment of Parent, no more restrictive than
those applicable to the Indebtedness being refinanced), (c) set forth in any
Real Property lease agreement, licenses, contracts entered into in the ordinary
course of business or the Marine World Agreements otherwise permitted hereunder
to the extent that such prohibition or restraint relates only to the Property
which is the subject of such instrument and could not reasonably be expected to
result in a Material Adverse Effect, (d) set forth in any instrument relating to
a Permitted Lien, so long as such prohibitions or restraints relate only to the
Property encumbered by such Permitted Lien and (e) set forth in the Spanish WB
Agreements, so long as such prohibitions or restraints relate only to the
Property which is the subject of the Spanish WB Agreements.
10.12. LINES OF BUSINESS. Engage to any substantial extent in any line
or lines of business activity other than the business of owning and operating
amusement and attraction parks, and businesses related, ancillary or
complementary thereto.
83
10.13. MODIFICATIONS OF CERTAIN DOCUMENTS. Consent to any
modification, supplement or waiver of:
(a) any provision of the Indentures, the effect of which would be
materially adverse to the Lenders;
(b) its articles of incorporation or by-laws in any manner adverse, in
any material respects, to the Lenders; or
(c) any provision of the Marine World Agreements, the Partnership
Parks Agreements, the Tax Sharing Agreement or any agreement relating to
any Subsequent Acquisition or any lease of Real Property with respect to
any Park if such modification, supplement or waiver would have a Material
Adverse Effect.
10.14. LIMITATION ON ACTIVITIES OF PARENT AND HOLDINGS. (a) In the
case of Parent and its Subsidiaries (other than Holdings and its Subsidiaries),
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, (i) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than those
incidental or related to its ownership of the assets permitted to be owned by it
pursuant to clause (ii) of this paragraph (a) or (ii) own, lease, manage or
otherwise operate any properties or assets other than (A) restricted and
unrestricted cash, Permitted Investments and Subordinated Parent Advances, (B)
the shares of Capital Stock of Holdings and the Capital Stock of the entities
that are Subsidiaries of Parent (but not Subsidiaries of Holdings) on the
Amendment and Restatement Effective Date or that are subject to the Partnership
Parks Agreements or the Subordinated Indemnity Agreement on the Amendment and
Restatement Effective Date and (C) assets used in the same line of business (or
businesses related, ancillary or complimentary thereto) as Parent and its
Subsidiaries operate on the date hereof, PROVIDED that the aggregate book value
of the assets referred to in this clause (C) shall not, at the time of
acquisition of any such asset, exceed an amount equal to the sum of (x) 10% of
the consolidated assets of Parent and its Subsidiaries (including Holdings and
its Subsidiaries) at such time plus (y) cash and Permitted Investments held on
the Amendment and Restatement Effective Date directly by Parent (and not through
any Subsidiary of Parent) and that are not being held in connection with the
defeasance of any securities or otherwise restricted in any way, and PROVIDED,
FURTHER, that (1) in no event shall Parent or any of its Subsidiaries (other
than Holdings and its Subsidiaries) make any Investment, or series of related
Investments, in an amount in excess of $175,000,000 and (2) the limitation in
clause (1) above shall not apply to (I) Investments in Holdings and its
Subsidiaries and (II) Capital Expenditures in respect of an Investment that was
previously made in a transaction otherwise permitted by this paragraph (a).
(b) In the case of Holdings, notwithstanding anything to the contrary
in this Agreement or any other Loan Document, conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any business
or operations other than (A) those incidental or related to its ownership of the
Capital Stock owned by it on the Amendment and Restatement Effective Date and
any Capital Stock acquired by it after the Amendment and Restatement Effective
Date in accordance with this Agreement and (B) those incidental to the purchase
and contribution of the Marine World Contributed Capital Expenditures.
84
10.15. LIMITATION ON HEDGING AGREEMENTS. Enter into any Hedging
Agreement other than Hedging Agreements entered into in the ordinary course of
business, and not for speculative purposes, to protect against changes in
interest rates or foreign exchange rates.
SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) any Borrower shall default in the payment when due in accordance
with the terms hereof of any principal of any Loan or Reimbursement
Obligation, or shall default for three or more Business Days in the payment
when due of any interest on any Loan or Reimbursement Obligation or any fee
or any other amount payable by it hereunder or under any other Loan
Document;
(b) any representation, warranty or certification made or deemed made
herein or in any other Loan Document (or in any modification or supplement
hereto or thereto) by any Loan Party, or any certificate furnished to any
Lender or the Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the time made
or furnished in any material respect, in any such case that could
reasonably be expected to (either individually or in the aggregate)
materially adversely affect the operations of any material Park or have a
Material Adverse Effect;
(c) (i) Parent, Holdings or the Primary Borrower shall default in the
performance of any of its obligations under (A) any of Section 9.2(a),
Section 9.6, Section 9.10 or Section 10 of this Agreement or Section 5.7(b)
of the Guarantee and Collateral Agreement or (B) Section 5.5 of the
Guarantee and Collateral Agreement and such default shall continue
unremedied for a period of 30 days or (ii) an "Event of Default" under and
as defined in any Mortgage shall have occurred and be continuing;
(d) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (c) of this Section 11) or any other Loan
Document and such failure shall continue unremedied for a period of 30 days
after notice thereof to the Primary Borrower by the Administrative Agent or
any Lender (through the Administrative Agent);
(e) Any Loan Party shall default in the payment when due of any
principal of or interest on any of its other Indebtedness aggregating
$10,000,000 or more or any Loan Party shall default in the payment when due
of any amount aggregating $10,000,000 or more under any Hedging Agreement;
(f) any event specified in any note, agreement, indenture or other
document evidencing or relating to any other Indebtedness aggregating
$10,000,000 or more of any Loan Party shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption, purchase,
offer to purchase or otherwise), prior to its stated maturity or to have
the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof; or any event specified in any Hedging Agreement shall occur if the
effect of such event is to cause, or (with the giving of any
85
notice or the lapse of time or both) to permit, termination or liquidation
payment or payments aggregating $10,000,000 or more to become due;
(g) a proceeding or case shall be commenced, without the application
or consent of Parent, Holdings, the Primary Borrower or any Subsidiary, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of Parent, Holdings, the Primary
Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of Parent, Holdings, the
Primary Borrower or such Subsidiary under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against Parent, Holdings, the Primary Borrower
or any Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code or any other applicable bankruptcy, insolvency or similar
laws;
(h) Parent, Holdings, the Primary Borrower or any Subsidiary shall (i)
apply for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee, examiner or liquidator of itself or of all
or a substantial part of its Property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code or any other applicable bankruptcy, insolvency or similar
laws, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or any other applicable bankruptcy,
insolvency or similar laws or take any corporate action for the purpose of
effecting any of the foregoing;
(i) Parent, Holdings, the Primary Borrower or any Subsidiary shall
admit in writing its inability to, or be generally unable to, pay its debts
as such debts become due;
(j) a final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts to the
extent covered by insurance or indemnification of creditworthy third
parties) shall be rendered by one or more courts, administrative tribunals
or other bodies having jurisdiction against Parent, Holdings, the Primary
Borrower or any Subsidiary and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 60 days from the date of entry
thereof and Parent, Holdings, the Primary Borrower or the relevant
Subsidiary shall not, within such period of 60 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal;
(k) an event or condition specified in Section 9.2(c) shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of
such event or condition, together with all other such events or conditions,
Parent, Holdings, the Primary Borrower or any Subsidiary or any ERISA
Affiliate shall incur or in the opinion of the Required Lenders shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
the PBGC (or any combination of the foregoing) that, in the determination
of the Required Lenders, would (either individually or in the aggregate)
have a Material Adverse Effect;
86
(l) there shall have been asserted against Parent, Holdings, the
Primary Borrower or any Subsidiary a claim under any Environmental Law
that, in the judgment of the Required Lenders, is reasonably likely to be
determined adversely to Parent, Holdings, the Primary Borrower or any
Subsidiary, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by Parent, Holdings, the Primary Borrower or any
Subsidiary but after deducting any portion thereof that is reasonably
expected to be paid by other creditworthy Persons liable in whole or in
part therefor);
(m) any one or more of the following shall occur and be continuing:
(i) any "Person" (as such term is used in Sections 13(d) and
14(d) of the Securities and Exchange Act of 1934 (the "EXCHANGE ACT")
is or becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
35% of the voting stock of Parent;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of Parent (together with any new directors whose election by such
Board of Directors or whose nomination for election by Parent's
shareholders was approved by a vote of a majority of Parent's
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of Parent's directors then in office;
(iii) any change in control with respect to Parent (or similar
event, however denominated) shall occur under and as defined in any
Indenture or other agreement in respect of Indebtedness in an
aggregate principal amount of at least $10,000,000 to which Parent,
Holdings or any of its Subsidiaries is a party; or
(iv) Parent shall cease to own directly or indirectly 100% of
the Capital Stock of Holdings and each of the Borrowers;
(n) (i) any of the Liens created by the Security Documents shall at
any time not constitute valid and perfected Liens on the Collateral (other
than immaterial items of Collateral) intended to be covered thereby (to the
extent perfection by filing, registration, recordation or possession is
required herein or therein) in favor of the Administrative Agent, free and
clear of all other Liens (other than Liens permitted under Section 10.3 or
under the respective Security Documents), or, except for expiration in
accordance with its terms, any of the Security Documents shall for whatever
reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Loan Party or (ii) the
Guarantee contained in Section 2 of the Guarantee and Collateral Agreement
shall cease, for any reason, to be in full force and effect or any Loan
Party or any Affiliate of any Loan Party shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g), (h) or (i) above with respect to any Borrower, automatically
the Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
then, any or all of the following actions may be taken: (i) with the consent of
the Majority
87
Revolving Credit Facility Lenders, the Administrative Agent may, or upon the
request of the Majority Revolving Credit Facility Lenders, the Administrative
Agent shall, by notice to the Primary Borrower, declare the Revolving Credit
Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; (ii) with the consent of the Majority
Multicurrency Facility Lenders, the Administrative Agent may, or upon the
request of the Majority Multicurrency Facility Lenders, the Administrative Agent
shall, by notice to the Primary Borrower, declare the Multicurrency Commitments
to be terminated forthwith, whereupon the Multicurrency Commitments shall
immediately terminate; and (iii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Primary Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the relevant Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrowers hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Primary Borrower (or such other Person as may be lawfully entitled
thereto).
SECTION 12. THE AGENTS
12.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each Lender irrevocably authorizes each Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
12.2. DELEGATION OF DUTIES. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.3. EXCULPATORY PROVISIONS. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
88
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
12.4. RELIANCE BY AGENTS. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.6 and all actions required by such
Section in connection with such transfer shall have been taken. Each Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance
with a request of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
12.5. NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender, Holdings or a Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent shall receive such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement);
PROVIDED that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
12.6. NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
89
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
Business, Property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
12.7. INDEMNIFICATION. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the Borrowers
and without limiting the obligation of Holdings or the Borrowers to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save each Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. The Administrative Agent shall have the right
to deduct any amount owed to it by any Lender under this Section from any
payment made by it to such Lender hereunder. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
12.8. AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
12.9. SUCCESSOR AGENTS. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders and Holdings. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 11(g), (h) or (i) with respect to
Holdings or a Borrower shall have occurred and be continuing) be subject to
approval by Holdings (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10
90
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Any Syndication Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as
Syndication Agent hereunder, whereupon the duties, rights, obligations and
responsibilities of such Syndication Agent hereunder shall automatically be
assumed by, and inure to the benefit of, the Administrative Agent, without any
further act by such Syndication Agent, the Administrative Agent or any Lender.
After any retiring Agent's resignation as Agent, the provisions of this Section
12 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Loan Documents.
12.10. AUTHORIZATION TO RELEASE LIENS AND GUARANTEES. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
13.15.
12.11. THE ARRANGER AND SYNDICATION AGENTS. Neither the Arranger, the
Syndication Agents nor the Documentation Agent, in their respective capacities
as such, shall have any duties or responsibilities, and none of them shall incur
any liability, under this Agreement and the other Loan Documents.
SECTION 13. MISCELLANEOUS
13.1. AMENDMENTS AND WAIVERS. (a) Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 13.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (i)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents (including amendments and restatements hereof or thereof)
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (ii) waive, on such terms and conditions as
may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall:
(A) forgive the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation, extend
the scheduled date or change the amount of any amortization payment in
respect of any Loan, reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof, or increase
the amount or extend the expiration date of any Commitment of any Lender,
in each case without the consent of each Lender directly affected thereby;
(B) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required Lenders or
Required Prepayment Lenders, consent to the assignment or transfer by
Parent, Holdings or any Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, release all or substantially
all of the Collateral, release all or substantially all of the Subsidiary
Guarantors from their guarantee obligations under the Guarantee and
Collateral Agreement, release Holdings from its guarantee obligations under
the Guarantee and Collateral Agreement or release the Primary Borrower from
its guarantee obligations under the Guarantee and Collateral Agreement, in
each case without the
91
consent of all Lenders (except (i) as permitted by any Loan Document or
(ii) that such obligations of any Subsidiary Borrower may be transferred to
any other Subsidiary Borrower or the Primary Borrower with the consent of
the Required Lenders);
(C) change the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without the written
consent of all Lenders under such Facility;
(D) amend, modify or waive any provision of Section 12, or
any other provision affecting any Agent or Arranger, without the consent of
any Agent or Arranger directly affected thereby;
(E) amend, modify or waive any provision of Section 3.3 or
3.4 without the written consent of the Swing Line Lender;
(F) amend, modify or waive any provision of Section 6.11
without the consent of each Lender directly affected thereby;
(G) amend, modify or waive any provision of Section 5 without
the consent of the Issuing Lender;
(H) amend, modify or waive any provision of Section 6.5(d)
without the consent of the Required Prepayment Lenders;
(I) require any Lender to make Loans having an Interest
Period of longer than six months without the consent of such Lender; or
(J) amend or modify Section 13.6 to add any additional
consent requirements necessary to effect any assignment or participation
under such Section without the consent of each Lender.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a):
(i) this Agreement will be amended to add any Foreign
Subsidiary of the Primary Borrower as a Foreign Subsidiary Borrower with
respect to the Multicurrency Facility upon (A) execution and delivery by
the Primary Borrower, any such Foreign Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for such Subsidiary
to become a Foreign Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (I) a Foreign Subsidiary Opinion in respect of such
additional Foreign Subsidiary Borrower and (II) such other documents with
respect thereto as the Administrative Agent shall reasonably request;
(ii) this Agreement will be amended to remove any Subsidiary
as a Foreign Subsidiary Borrower upon (A) written notice by the Primary
Borrower to the Administrative Agent to such effect and (B) repayment in
full of all outstanding extensions of credit made to such Foreign
Subsidiary Borrower hereunder; and
(iii) this Agreement will be amended to provide for increases
in the Commitments and matters related thereto upon (A) execution and
delivery by the Primary Borrower, the Administrative Agent and each Lender
providing an Optional Term Loan Commitment or increasing its Multicurrency
Commitment of the Optional Increase Amendment
92
and (B) such other documents with respect thereto as the Administrative
Agent shall reasonably request.
Any such waiver and any such amendment, supplement or modification effected
pursuant to the foregoing paragraphs (a) or (b) shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. Any
such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section; PROVIDED, that delivery of an executed
signature page of any such instrument by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
For the avoidance of doubt, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party to each relevant Loan Document (x) to
add one or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest, fees and other amounts in respect thereof (collectively, the
"ADDITIONAL EXTENSIONS OF CREDIT") to share ratably in the benefits of this
Agreement and the other Loan Documents with the Tranche B Term Loans,
Multicurrency Extensions of Credit and Revolving Extensions of Credit and the
accrued interest and fees in respect thereof and (y) to include appropriately
the Lenders holding such credit facilities in any determination of the Required
Lenders, Required Prepayment Lenders, Majority Multicurrency Facility Lenders
and Majority Revolving Credit Facility Lenders; PROVIDED, HOWEVER, that no such
amendment shall permit the Additional Extensions of Credit to share ratably with
or with preference to the Loans in the application of prepayments without the
consent of the Required Prepayment Lenders, and no such amendment shall, without
the consent of all Lenders, subordinate any of the Loans, or any of the rights
in the Collateral of any Lenders, to any such Additional Extension of Credit;
PROVIDED, FURTHER, that the consent of the Required Lenders shall not be
required for any increase in Commitments pursuant to Section 6.18.
13.2. NOTICES. Unless otherwise expressly provided herein, all
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of Parent, Holdings, the Borrowers, the
Agents and the Issuing Lenders as follows and (b) in the case of the Lenders, as
set forth in an administrative questionnaire delivered to the Administrative
Agent or on Schedule I to the Lender Addendum to which such Lender is a party
or, in the case of a Lender which becomes a party to this Agreement pursuant to
an Assignment and Acceptance, in such Assignment and Acceptance or (c) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
Parent or Holdings c/o Six Flags Operations, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
93
with a copy to: Six Flags Operations, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Primary Borrower: Six Flags Theme Parks Inc.
c/o Holdings, as set forth above
The Subsidiary Borrowers: c/o Holdings, as set forth above.
The Syndication Agents: The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx/ Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
Bank of America, N.A.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Documentation Agent: Credit Lyonnais, New York Branch
c/o Credit Lyonnais
0000 Xxxx Xxx., Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Issuing Lender: As notified by such Issuing Lender
to the Administrative Agent and the
Primary Borrower
PROVIDED that any notice, request or demand to or upon the any Agent, the
Issuing Lender or any Lender shall not be effective until received.
94
13.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
13.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
13.5. PAYMENT OF EXPENSES. The Primary Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Arranger for all their reasonable
out-of-pocket costs and expenses incurred in connection with the syndication of
the Facilities (including the charges of Intralinks but excluding fees payable
to syndicate members) and the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements and other charges of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Agents for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the fees and disbursements of counsel to the
Lenders and the Agents, (c) to pay, indemnify, or reimburse each Lender and the
Agents for, and hold each Lender and the Agents harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify or reimburse each Lender,
each Agent, their respective affiliates, and their respective officers,
directors, trustees, employees, advisors, agents and controlling persons (each,
an "INDEMNITEE") for, and hold each Indemnitee harmless from and against, any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of Holdings
or any of its Subsidiaries or any of the Properties and the fees and
disbursements and other charges of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party hereunder (all
the foregoing in this clause (d), collectively, the "INDEMNIFIED LIABILITIES"),
PROVIDED, that the Primary Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, Holdings agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements for
amounts payable by the Primary Borrower
95
pursuant to this Section shall be submitted to the attention of the Chief
Financial Officer (Telephone No. 000-000-0000) (Fax No. 000-000-0000), at the
address of the Primary Borrower set forth in Section 13.2, or to such other
Person or address as may be hereafter designated by the Primary Borrower in a
written notice to the Administrative Agent. The agreements in this Section shall
survive repayment of the Loans and all other amounts payable hereunder.
13.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of Parent, Holdings,
the Borrowers, the Lenders, the Agents, all future holders of the Loans and
their respective successors and assigns, except that neither Parent, nor
Holdings nor (except as set forth in Section 13.1(a)) any Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of any Loan Party or any
Agent, in accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "PARTICIPANT") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Loan Parties and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would require the consent of all Lenders pursuant to Section
13.1. Each of Parent, Holdings and each Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff 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, PROVIDED that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 13.7(a) as fully as if such
Participant were a Lender hereunder. Each of Parent, Holdings and each Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
6.12, 6.13, 6.14 and 13.5 with respect to its participation in the Commitments
and the Loans outstanding from time to time as if such Participant were a
Lender; PROVIDED that, in the case of Section 6.13, such Participant shall have
complied with the requirements of said Section, and PROVIDED, FURTHER, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "ASSIGNOR") may, in accordance with applicable law
and upon written notice to the Administrative Agent, at any time and from time
to time assign to any Lender or any affiliate, Control Investment Affiliate or
Related Fund thereof or, with the consent of the Primary Borrower and the
Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Swing Line Lender and, in the case of
any assignment of Multicurrency Commitments, the written consent of each Issuing
Lender (which, in each case, shall not be unreasonably withheld or delayed)
(PROVIDED that, unless the assignee cannot deliver the exemption certificate
annexed hereto as Exhibit I, (x) no such consent need be obtained by any Xxxxxx
Entity for a period of 180 days following the Amendment and Restatement
Effective Date and (y) the consent of the
96
Primary Borrower need not be obtained with respect to any assignment of Tranche
B Term Loans), to an additional bank, financial institution or other entity (an
"ASSIGNEE") all or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit E
(an "ASSIGNMENT AND ACCEPTANCE"), executed by such Assignee and such Assignor
(and, where the consent of the Primary Borrower, the Administrative Agent, the
Issuing Lender or the Swing Line Lender is required pursuant to the foregoing
provisions, by the Primary Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register; PROVIDED
that no such assignment to an Assignee (other than any Lender or any affiliate,
Control Investment Affiliate or Related Fund thereof) shall be in an aggregate
principal amount of less than $5,000,000 in the case of the Revolving Credit
Facility and the Multicurrency Facility and $1,000,000 in the case of the
Tranche B Term Loan Facility and any Optional Term Loans (other than in the case
of an assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Primary Borrower and the Administrative Agent; and
PROVIDED FURTHER, that in the event of concurrent assignments to two or more
Related Funds, all such concurrent assignments shall be aggregated in
determining compliance with the foregoing requirement as to the minimum
principal amount of assignments. Any such assignment need not be ratable as
among the Facilities. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments and/or Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto, except as to Section 6.12, 6.13 and 13.5 in respect of the period
prior to such effective date). Notwithstanding any provision of this Section,
the consent of the Primary Borrower shall not be required for any assignment
that occurs at any time when any Event of Default shall have occurred and be
continuing. In the event that any Dollar Multicurrency Commitment or General
Multicurrency Commitment, as the case may be, shall be assigned pursuant to this
Section 13.6, such Multicurrency Commitment shall continue to be a Dollar
Multicurrency Commitment or General Multicurrency Commitment, as the case may
be; and the Assignee Lender in respect thereof shall be a Dollar Multicurrency
Lender or a General Multicurrency Lender, respectively.
(d) The Administrative Agent shall, on behalf of the Borrowers,
maintain a copy of each Assignment and Acceptance 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, in the
absence of manifest error, and the Borrowers, each Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of the
Loans and any Notes evidencing such Loans recorded therein for all purposes of
this Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being made
in the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance; thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the designated Assignee, and the old Notes shall be
returned by the Administrative Agent to the relevant Borrower marked "canceled".
The Register shall be available for inspection by the Primary Borrower or any
Lender (with respect to any entry relating to such Lender's Loans) at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 13.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee
97
of $3,500 (except that no such registration and processing fee shall be payable
(y) in connection with an assignment by or to any Xxxxxx Entity or (z) in the
case of an Assignee which is already a Lender or is an affiliate or a Related
Fund of a Lender or a Person under common management with a Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders, the Agents and the Primary Borrower; PROVIDED,
HOWEVER, that, in the case of contemporaneous assignments by a Lender to more
than one fund managed by the same investment advisor (which funds are not then
Lenders hereunder), only a single such registration and processing fee shall be
payable for such contemporaneous assignments. On or prior to such effective
date, each relevant Borrower, at its own expense, upon request, shall execute
and deliver to the Administrative Agent (in exchange for the applicable Notes of
the assigning Lender) a new applicable Note or Notes, as the case may be, to the
order of such Assignee in an amount equal to the relevant Commitment and/or
applicable Tranche B Term Loans, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new
applicable Note or Notes, as the case may be, to the order of the Assignor in an
amount equal to the applicable Commitment and/or Tranche B Term Loans, as the
case may be, retained by it hereunder. Such new Note or Notes shall be dated the
Amendment and Restatement Effective Date and shall otherwise be in the form of
the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable Requirements of Law.
(g) Each Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes conforming to the requirements hereof to such
Lender.
13.7. ADJUSTMENTS; SET-OFF. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, (i) except to the extent that the Loan
Documents provide that only the Tranche B Term Loans shall be secured by the
Mortgaged Property of the Primary Borrower or any Subsidiary thereof located in
the State of New York (the "NEW YORK COLLATERAL"), if any Lender shall at any
time receive any payment of all or part of the Obligations owing to it, or
receive any Collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 11(g), (h) or (i), or otherwise), in a greater proportion than any such
payment to or Collateral received by any other Lender, if any, in respect of the
Obligations owing to such other Lender, or (ii) if, as a result of any exercise
of rights and remedies with respect to the New York Collateral, any Lender
holding a Tranche B Term Loan shall at any time receive any payment of all or
part of the Obligations owing to it (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
11(g), (h) or (i), or otherwise), in a greater proportion than any such payment
to any other Lender, if any, in respect of the Obligations owing to such other
Lender, such benefitted Lender (each benefitted Lender referred to in clauses
(i) and (ii) above, a "BENEFITTED LENDER") shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, or shall provide such other Lenders with the benefits
of any such Collateral, or the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
Collateral, or the proceeds thereof, ratably with each of the Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment, benefits or proceeds
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
98
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to Parent, Holdings
or any Borrower, any such notice being expressly waived by Parent, Holdings and
each Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by any Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of Parent,
Holdings or any Borrower, as the case may be. Each Lender agrees promptly to
notify Parent and the Administrative Agent after any such setoff and application
made by such Lender, PROVIDED that the failure to give such notice shall not
affect the validity of such setoff and application.
13.8. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with Holdings and the Administrative
Agent.
13.9. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10. INTEGRATION. This Agreement and the other Loan Documents
represent the entire agreement of the parties hereto with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Arranger, any Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
13.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12. SUBMISSION TO JURISDICTION; WAIVERS. Each of Parent, Holdings
and each Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
99
(c) in the case of each Foreign Subsidiary Borrower, such Foreign
Subsidiary Borrower hereby irrevocably designates Holdings (and Holdings
hereby irrevocably accepts such designation) as its agent to receive
service of process in any such action or proceeding, and agrees that such
service upon Holdings shall be effective whether or not Holdings shall
inform such Foreign Subsidiary Borrower thereof;
(d) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Parent or
Holdings, as the case may be, (and, in the case of any Foreign Subsidiary
Borrower, to such Foreign Subsidiary Borrower c/o Holdings) at its address
set forth in Section 13.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(e) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(f) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
13.13. ACKNOWLEDGMENTS. Each of Parent, Holdings and each Borrower
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any fiduciary
relationship with or duty to Parent, Holdings or any Borrower arising out
of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Arranger, the Agents and the Lenders, on
one hand, and Parent, Holdings and the Borrowers, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Arranger, the Agents and the Lenders or among Parent, Holdings, the
Borrowers and the Lenders.
13.14. CONFIDENTIALITY. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; PROVIDED that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Arranger, any Agent, any other
Lender or any affiliate of any thereof, (b) to any Participant or Assignee
(each, a "TRANSFEREE") or prospective Transferee that agrees to comply with the
provisions of this Section, (c) to any of its employees, directors, agents,
attorneys, accountants and other professional advisors, (d) to any financial
institution that is a direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section), (e) upon the
request or demand of any Governmental Authority having jurisdiction over it, (f)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (g) in connection with
any litigation or similar proceeding, (h) that has been publicly disclosed other
than in breach of this Section, (g) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a
100
Lender's investment portfolio in connection with ratings issued with respect to
such Lender or (i) in connection with the exercise of any remedy hereunder or
under any other Loan Document.
13.15. RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, upon request of Holdings in connection with any
Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement)
take such actions as shall be required to release its security interest in
any Collateral being Disposed of in such Disposition, and to release any
guarantee obligations under any Loan Document of any Person being Disposed
of in such Disposition, to the extent necessary to permit consummation of
such Disposition in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be
outstanding, upon request of Holdings, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such
actions as shall be required to release its security interest in all
Collateral, and to release all guarantee obligations under any Loan
Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Specified Hedge Agreements. Any such
release of guarantee obligations shall be deemed subject to the provision
that such guarantee obligations shall be reinstated if after such release
any portion of any payment in respect of the Obligations guaranteed thereby
shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
any Borrower or any Guarantor or any substantial part of its Property, or
otherwise, all as though such payment had not been made.
13.16. ACCOUNTING CHANGES. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then Holdings, the Borrowers and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of Holdings and the Borrowers
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made. Until such time as such an amendment shall have been executed
and delivered by Parent, Holdings, the Borrowers, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. "ACCOUNTING CHANGES" refers to changes in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants or, if applicable, the SEC.
13.17. DELIVERY OF LENDER ADDENDA. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Primary Borrower and the
Administrative Agent.
13.18. WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
101
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
13.19. EFFECT OF AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT
AGREEMENT. On the Amendment and Restatement Effective Date, the Existing Credit
Agreement shall be amended and restated in its entirety. The parties hereto
acknowledge and agree that (a) this Agreement and the other Loan Documents,
whether executed and delivered in connection herewith or otherwise, do not
constitute a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement as in effect prior to the Amendment and Restatement Effective
Date and which remain outstanding; (b) such "Obligations" are in all respects
continuing (as amended and restated hereby); (c) the Liens and security
interests as granted under the Security Documents securing payment of such
"Obligations" are in all respects continuing and in full force and effect; and
(d) references in the Security Documents to the "Credit Agreement" shall be
deemed to be references to this Agreement, and to the extent necessary to effect
the foregoing, each such Security Document is hereby deemed amended accordingly.
102
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SIX FLAGS, INC.
By:
--------------------------------------
Name:
Title:
SIX FLAGS OPERATIONS INC.
By:
--------------------------------------
Name:
Title:
SIX FLAGS THEME PARKS INC.,
as Primary Borrower
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Syndication
Agent
By:
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Syndication
Agent
By:
--------------------------------------
Name:
Title:
103
CREDIT LYONNAIS, NEW YORK BRANCH,
as Documentation Agent
By:
--------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By:
--------------------------------------
Name:
Title:
104
ANNEX A
PRICING GRID
REVOLVING CREDIT FACILITY AND MULTICURRENCY FACILITY
CONSOLIDATED APPLICABLE MARGIN APPLICABLE MARGIN
LEVERAGE RATIO EUROCURRENCY LOANS BASE RATE LOANS COMMITMENT FEE RATE
----------------------------------- ------------------ ----------------- -------------------
GREATER THAN OR EQUAL TO 2.5 to 1.0 2.25% 1.25% 0.500%
LESS THAN 2.5 to 1.0 and
GREATER THAN OR EQUAL TO 2.0 to 1.0 2.00% 1.00% 0.500%
LESS THAN 2.0 to 1.0 and
GREATER THAN OR EQUAL TO 1.5 to 1.0 1.75% 0.75% 0.375%
LESS THAN 1.5 to 1.0 1.50% 0.50% 0.375%
Changes in the Applicable Margin or in the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on each date
(each, an "ADJUSTMENT DATE") on which financial statements of Holdings are
delivered to the Lenders pursuant to Section 9.1 (but in any event not later
than the 45th day after the end of each of the first three quarterly periods of
each fiscal year or the 90th day after the end of each fiscal year, as the case
may be) and shall remain in effect until the next change to be effected pursuant
to this paragraph. If any financial statements referred to above are not
delivered within the time periods specified above, then, until such financial
statements are delivered, the Consolidated Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of
this definition be deemed to be greater than 2.5 to 1.0. Each determination of
the Consolidated Leverage Ratio pursuant to this Pricing Grid shall be made for
the periods and in the manner contemplated by Section 10.1(a) (it being
understood that the foregoing ratio is of Consolidated Total Debt to
Consolidated EBITDA).
ANNEX B
EXISTING LETTERS OF CREDIT
LETTER OF CREDIT NUMBER BENEFICIARY PRINCIPAL AMOUNT EXPIRATION DATE
----------------------- ----------- ---------------- ---------------
