<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10 - Q
---------------
(MARK ONE)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- ------- SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997
OR
- ------- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
-------- --------
COMMISSION FILE NUMBER 001-12131
---------------------------
AMF GROUP INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 13-3873272
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
8100 AMF DRIVE
RICHMOND, VIRGINIA 23111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
---------------------------
(804) 730-4000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
---------------------------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X . No .
------ -----
At August 1, 1997, 100 shares of common stock, par value of $.01, of the
Registrant were outstanding.
<PAGE> 2
PART I
ITEM 1. FINANCIAL STATEMENTS
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
----------------- ------------------
(UNAUDITED)
<S> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents $ 16,640 $ 43,568
Accounts and notes receivable, net of allowance for
doubtful accounts of $4,086 and $4,492, respectively 57,120 42,625
Inventories 56,488 41,001
Deferred taxes and other 13,210 11,178
----------------- ------------------
Total current assets 143,458 138,372
Property and equipment, net 743,675 630,796
Deferred financing costs, net 40,151 40,595
Goodwill, net 766,661 771,146
Other assets 21,487 12,964
----------------- ------------------
Total assets $ 1,715,432 $ 1,593,873
================= ==================
LIABILITIES AND STOCKHOLDER'S EQUITY
------------------------------------
Current liabilities:
Accounts payable $ 32,757 $ 31,563
Accrued expenses 54,550 54,357
Income taxes payable 4,488 2,220
Note payable 30,000 -
Long-term debt, current portion 44,876 42,376
----------------- ------------------
Total current liabilities 166,671 130,516
Long-term debt 1,146,415 1,048,877
Other long-term liabilities 6,383 1,851
Deferred income taxes 4,922 3,895
----------------- ------------------
Total liabilities 1,324,391 1,185,139
----------------- ------------------
Commitments and contingencies
Stockholder's equity:
Common stock (par value $.01, 100 shares
issued and outstanding) - -
Paid-in capital 429,450 429,450
Retained deficit (32,243) (19,565)
Equity adjustment from foreign
currency translation (6,166) (1,151)
----------------- ------------------
Total stockholder's equity 391,041 408,734
----------------- ------------------
Total liabilities and stockholder's equity $ 1,715,432 $ 1,593,873
================= ==================
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
2
<PAGE> 3
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
AMF Group Holdings Inc.
----------------------------------------------------------------
Three Months Ended June 30, Six Months Ended June 30,
------------------------------- -------------------------------
1997 1996 (a) 1997 1996 (a)(b)
---- -------- ---- -----------
<S> <C> <C> <C> <C>
Operating revenue $ 160,479 $ 73,423 $ 318,068 $ 73,423
-------------- --------------- -------------- --------------
Operating expenses:
Cost of goods sold 48,034 23,513 86,084 23,513
Bowling center operating expenses 60,698 26,747 116,038 26,747
Selling, general, and administrative expenses 16,170 7,518 30,172 7,518
Depreciation and amortization 22,924 11,650 43,424 11,650
-------------- --------------- -------------- --------------
Total operating expenses 147,826 69,428 275,718 69,428
-------------- --------------- -------------- --------------
Operating income (loss) 12,653 3,995 42,350 3,995
Nonoperating expenses (income):
Interest expense 29,782 22,273 57,454 23,873
Other expenses, net 859 323 2,320 323
Interest income (406) (2,752) (1,055) (3,752)
-------------- --------------- -------------- --------------
Total nonoperating expenses 30,235 19,844 58,719 20,444
-------------- --------------- -------------- --------------
Loss before income taxes (17,582) (15,849) (16,369) (16,449)
Benefit for income taxes (5,311) (3,971) (4,191) (4,205)
-------------- --------------- -------------- --------------
Net loss $ (12,271) $ (11,878) $ (12,178) $ (12,244)
============== =============== ============== ==============
</TABLE>
<TABLE>
<CAPTION>
Predecessor Company
-----------------------------------
One Month Four Months
Ended Ended
----- -----
April 30, 1996 April 30, 1996
-------------- --------------
<S> <C> <C>
Operating revenue $ 41,601 $ 164,944
--------------- ----------------
Operating expenses:
Cost of goods sold 12,418 43,118
Bowling center operating expenses 37,980 80,196
Selling, general, and administrative expenses 23,949 35,516
Depreciation and amortization 4,128 15,098
--------------- ----------------
Total operating expenses 78,475 173,928
--------------- ----------------
Operating income (loss) (36,874) (8,984)
Nonoperating expenses (income):
Interest expense 702 4,504
Other expenses, net 535 721
Interest income (217) (611)
--------------- ----------------
Total nonoperating expenses 1,020 4,614
--------------- ----------------
Loss before income taxes (37,894) (13,598)
Benefit for income taxes (4,451) (1,731)
--------------- ----------------
Net loss $ (33,443) $ (11,867)
=============== ================
</TABLE>
(a) Includes results of operations of the acquired business from May 1, 1996
through June 30, 1996.
(a) For the period from the inception date of January 12, 1996 through June 30,
1996.
The accompanying notes are an integral part of these consolidated financial
statements.
3
<PAGE> 4
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
PREDECESSOR
COMPANY
-------
AMF GROUP HOLDINGS INC. FOUR MONTHS
SIX MONTHS ENDED JUNE 30, ENDED
--------------------------------------- -----
1997 1996 * APRIL 30, 1996
---- ------ --------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (12,178) $ (12,244) $ (11,867)
Adjustments to reconcile net income loss to net cash
provided by operating activities:
Depreciation and amortization 43,424 11,650 15,098
Deferred income taxes (1,775) 5,871 1,018
Amortization of bond discount 16,788 8,826 -
Loss (gain) on the sale of property and equipment, net 94 (31) -
Changes in assets and liabilities:
Accounts and notes receivable, net (17,942) (3,678) 5,614
Inventories (15,877) (3,396) (3,793)
Other assets (21,394) (47,342) (1,418)
Accounts payable and accrued expenses 1,432 21,418 9,442
Income taxes payable 2,248 (8,602) (5,833
Other long-term liabilities 13,345 (517) (2,228)
--------------- ---------------- --------------
Net cash provided by (used in) operating activities 8,165 (28,045) 6,033
--------------- ---------------- --------------
Cash flows from investing activities:
Acquisitions of operating units, net of cash acquired (122,165) (1,333,048) -
Purchases of property and equipment (25,639) (3,318) (6,874)
Proceeds from the sale of property and equipment 268 86 244
--------------- ---------------- --------------
Net cash used in investing activities (147,536) (1,336,280) (6,630)
--------------- ---------------- --------------
Cash flows from financing activities:
Proceeds from long-term debt, net of deferred financing costs 133,500 1,029,930 -
Payment on long-term debt (20,250) (233) (159,780)
Payments on notes payable - stockholders, net - - 20,870
Capital contribution - 380,250 188,009
Dividend to Parent (500) - -
Distributions to stockholders - - (36,488)
Noncompete obligations (322) (190) (36)
--------------- ---------------- --------------
Net cash provided by financing activities 112,428 1,409,757 12,575
--------------- ---------------- --------------
Effect of exchange rates on cash 15 (338) 565
--------------- ---------------- --------------
Net (decrease) increase in cash (26,928) 45,094 12,543
Cash and cash equivalents at beginning of period 43,568 - 9,732
--------------- ---------------- --------------
Cash and cash equivalents at end of period $ 16,640 $ 45,094 $ 22,2775
=============== ================ ==============
</TABLE>
* For the period from the inception date of January 12, 1996 through June 30,
1996.
The accompanying notes are an integral part of these consolidated financial
statements.
4
<PAGE> 5
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION
The accompanying unaudited consolidated financial statements reflect all
adjustments (consisting of normal recurring accruals) which are, in the opinion
of management, necessary for a fair presentation of the results of operations
for the interim periods. The interim financial information and notes thereto
should be read in conjunction with the April 30, 1996, and December 31, 1995
audited combined financial statements of AMF Bowling Group (the "Predecessor
Company") and the December 31, 1996 audited consolidated financial statements
of AMF Group Holdings Inc. and subsidiaries ("Holdings") presented in the Form
10-K Annual Report filed with the U.S. Securities and Exchange Commission on
March 28, 1997. The results of operations for the three months and six months
ended June 30, 1997, respectively, are not necessarily indicative of results to
be expected for the entire year.
AMF Group Inc. (the "Company") is principally engaged in two business segments:
(i) the ownership or operation of bowling centers, consisting of 321 U.S.
centers and 87 international centers ("Bowling Centers") as of June 30, 1997,
and (ii) the manufacture and distribution of bowling equipment such as
automatic pinspotters, automatic scoring equipment, bowling pins, lanes, ball
returns, certain spare and replacement parts, and the resale of allied products
such as bowling balls, bags, shoes, and certain other spare and replacement
parts ("Bowling Products"). The principal markets for bowling equipment are
U.S. and international bowling center operators.
The Company is a wholly owned subsidiary of Holdings. Holdings is a wholly
owned subsidiary of AMF Holdings Inc. (the "Parent"). Holdings and the Company
are Delaware corporations organized by GS Capital Partners II, L.P., and
certain other investment funds (collectively, "GSCP") affiliated with Goldman,
Sachs & Co. ("Goldman Sachs") to effect the acquisition (described below).
Holdings and the Parent are holding companies only. The primary assets in each
are comprised of investments in direct and/or indirect subsidiaries.
Pursuant to a Stock Purchase Agreement dated February 16, 1996, between
Holdings and the stockholders (the "Sellers") of the Predecessor Company, on
May 1, 1996 (the "Closing Date"), Holdings acquired the Predecessor Company
through a stock purchase by Holdings' subsidiaries of all the outstanding stock
of the separate domestic and foreign corporations that constituted
substantially all of the Predecessor Company and through the purchase of
certain of the assets of the Predecessor Company's bowling center operations in
Spain and Switzerland (the "Acquisition"). Holdings did not acquire the assets
of two bowling centers located in Madrid, Spain and Geneva, Switzerland (both
of which were retained by the Sellers).
The purchase price for the Acquisition was approximately $1.374 billion, less
approximately $2.0 million representing debt of the Predecessor Company which
remained in place following the closing of the Acquisition. The Acquisition
was accounted for by the purchase method of accounting, pursuant to which the
purchase price was allocated among the acquired assets and liabilities in
accordance with estimates of fair market value on the date of acquisition.
5
<PAGE> 6
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
NOTE 2. SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The consolidated results of operations of Holdings have been presented for the
three months and six months ended June 30, 1997, respectively, the three months
ended June 30, 1996, and the period from the inception date of January 12, 1996
through June 30, 1996. Additionally, the combined results of operations of the
Predecessor Company for the one month and four months ended April 30, 1996,
have been presented. All significant intercompany balances and transactions
have been eliminated in the accompanying consolidated financial statements.
All dollar amounts are in thousands, except where otherwise indicated.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period. The
estimates made by management include allowances for obsolete inventory,
uncollectible accounts receivable, realization of goodwill and other deferred
assets, litigation and claims, product warranty costs, and self-insurance
costs. Actual results could differ from those estimates.
Goodwill
As a result of the Acquisition and subsequent purchases of bowling centers
discussed in "Note 9. Acquisitions", and in accordance with the purchase method
of accounting for the Acquisition, the Company recorded goodwill representing
the excess of the purchase price over the allocation among the acquired assets
and liabilities in accordance with estimates of fair market value on the dates
of acquisition. Goodwill is being amortized over 40 years. Amortization
expense was $4,960 and $9,860 for the three months and six months ended June
30, 1997, respectively. Accumulated amortization at June 30, 1997 was $22,930.
NOTE 3. PRO FORMA RESULTS OF OPERATIONS (UNAUDITED) (IN MILLIONS)
Pro forma statements of income for Holdings are presented on the following
pages for the three months and six months ended June 30, 1996, as if the
acquisition of the Predecessor Company had occurred on January 1, 1996.
Holdings' pro forma statement of income for the three months ended June 30,
1996, is based on the Predecessor Company's statement of income for the one
month ended April 30, 1996, Holdings' statement of income for the three months
ended June 30, 1996, and adjustments giving effect to the Acquisition under the
purchase method of accounting as described in the notes below. Holdings' pro
forma statement of income for the six months ended June 30, 1996, is based on
the Predecessor Company's statement of income for the four months ended April
30, 1996, Holdings' statement of income for the period from the inception date
of January 12, 1996 through June 30, 1996, and adjustments giving effect to the
Acquisition under the purchase method of accounting as described in the notes
below. The pro forma results are for illustrative purposes only, do not
purport to be indicative of the actual results which occurred, and are not
indicative of future results of operations.
6
<PAGE> 7
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
PRO FORMA RESULTS OF OPERATIONS (IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
Pro Forma
---------
Predecessor AMF Group
AMF Group Company Holdings Inc.
Holdings Inc. ------- -------------
------------- One Month Three Months
Three Months Ended Ended
------------ ----- Pro Forma -----
June 30, 1996 (a) April 30, 1996 Adjustments June 30, 1996
----------------- -------------- ----------- -------------
<S> <C> <C> <C> <C>
Operating revenue $ 73.4 $ 41.6 $ (0.2) (b) $ 114.8
---------------- --------------- --------------- ---------------
Operating expenses:
Cost of goods sold 23.5 12.4 (b) 35.9
Bowling center operating expenses 26.7 38.0 (23.9) (b)(c) 40.8
Selling, general, and administrative expenses 7.5 24.0 (20.3) (b)(c) 11.2
Depreciation and amortization 11.7 4.1 5.8 (d) 21.6
---------------- --------------- --------------- ---------------
Total operating expenses 69.4 78.5 (38.4) 109.5
---------------- --------------- --------------- ---------------
Operating income (loss) 4.0 (36.9) 38.2 5.3
Nonoperating expenses:
Interest expense 22.3 0.7 2.6 (e) 25.6
Other expenses, net 0.3 0.5 - 0.8
Interest income (2.8) (0.2) - (3.0)
---------------- --------------- --------------- ---------------
Income (loss) before income taxes (15.8) (37.9) 35.6 (18.1)
Provision (benefit) for income taxes (4.0) (4.4) 3.9 (f) (4.5)
---------------- --------------- --------------- ---------------
Net income (loss) $ (11.8) $ (33.5) $ 31.7 $ (13.6)
================ =============== =============== ===============
</TABLE>
(a) Includes the results of operations of the acquired business from May 1,
1996 through June 30, 1996.
(b) To reflect the impact of Holdings not acquiring the operations of one
bowling center in Switzerland and one bowling center in Spain.
(c) To eliminate a one-time charge of $44.0 million for special bonuses and
payments made by the Sellers in April 1996.
(d) To reflect the increase in depreciation and amortization expense from the
allocation of the purchase price to fixed assets and goodwill and a change
in the method of depreciation of fixed assets. The Predecessor Company
principally used the double declining balance method. The amount of the
pro forma adjustment for depreciation was determined using the
straight-line method over the estimated lives of the assets acquired.
Goodwill is being amortized over 40 years.
(e) To reflect the incremental interest expense associated with the issuance of
debt which partially funded the Acquisition.
(f) To give effect to the change in status of certain U.S. and international
subsidiaries of Holdings from S corporations to taxable corporations under
the Internal Revenue Code upon consummation of the Acquisition.
7
<PAGE> 8
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
<TABLE>
<CAPTION>
Pro Forma
---------
Predecessor AMF Group
Company Holdings Inc.
AMF Group ------- -------------
Holdings Inc. Four Months Six Months
------------- Ended Ended
Period Ended ----- Pro Forma -----
June 30, 1996 (g) April 30, 1996 Adjustments June 30, 1996
----------------- -------------- ----------- -------------
<S> <C> <C> <C> <C>
Operating revenue $ 73.4 $ 164.9 $ (0.8) (h) $ 237.5
----------------- --------------- --------------- ----------------
Operating expenses:
Cost of goods sold 23.5 43.1 (0.1) (h) 66.5
Bowling center operating expenses 26.7 80.2 (24.4) (h)(i) 82.5
Selling, general, and administrative
expenses 7.5 35.5 (20.3) (h)(i) 22.7
Depreciation and amortization 11.7 15.1 8.1 (j) 34.9
----------------- --------------- --------------- ----------------
Total operating expenses 69.4 173.9 (36.7) 206.6
----------------- --------------- --------------- ----------------
Operating income (loss) 4.0 (9.0) 35.9 30.9
Nonoperating expenses:
Interest expense 23.9 4.5 23.8 (k) 52.2
Other expenses, net 0.3 0.7 - 1.0
Interest income (3.8) (0.6) - (4.4)
----------------- --------------- --------------- ----------------
Income (loss) before income taxes (16.4) (13.6) 12.1 (17.9)
Provision (benefit) for income taxes (4.2) (1.7) 1.5 (l) (4.4)
----------------- --------------- --------------- ----------------
Net income (loss) $ (12.2) $ (11.9) $ 10.6 $ (13.5)
================= =============== =============== ================
</TABLE>
(g) Represents the results of Holdings for the period from the inception
date of January 12, 1996 through June 30, 1996.
(h) To reflect the impact of Holdings not acquiring the operations of one
bowling center in Switzerland and one bowling center in Spain.
(i) To eliminate a one-time charge of $44.0 million for special bonuses
and payments made by the Sellers in April 1996.
(j) To reflect the increase in depreciation and amortization expense from
the allocation of the purchase price to fixed assets and goodwill and
a change in the method of depreciation of fixed assets. The
Predecessor Company principally used the double declining balance
method. The amount of the pro forma adjustment for depreciation was
determined using the straight-line method over the estimated lives of
the assets acquired. Goodwill is being amortized over 40 years.
(k) To reflect the incremental interest expense associated with the
issuance of debt which partially funded the Acquisition.
(l) To give effect to the change in status of certain U.S. and
international subsidiaries of Holdings from S corporations to taxable
corporations under the Internal Revenue Code upon consummation of the
Acquisition.
8
<PAGE> 9
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
NOTE 4. INVENTORIES
Inventories at June 30, 1997, and December 31, 1996, consist of the following:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
-------------- ---------------
(UNAUDITED)
<S> <C> <C>
Bowling Products, at FIFO:
Raw materials $ 13,603 $ 11,683
Work in progress 2,493 2,335
Finished goods and spare parts 35,365 23,195
Bowling Centers, at average cost:
Merchandise inventory 5,027 3,788
-------------- ---------------
$ 56,488 $ 41,001
============== ===============
</TABLE>
NOTE 5. PROPERTY AND EQUIPMENT
Property and equipment at June 30, 1997, and December 31, 1996, consists of the
following:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
------------------- -------------------
(UNAUDITED)
<S> <C> <C>
Land $ 103,004 $ 90,512
Buildings and improvements 306,848 265,461
Equipment, furniture, and fixtures 386,580 304,067
Other 9,993 2,631
------------------- -------------------
806,425 662,671
Less: accumulated depreciation and amortization (62,750) (31,875)
------------------- -------------------
$ 743,675 $ 630,796
=================== ===================
</TABLE>
Depreciation and amortization expense related to property and equipment was
$30,875 and $7,445 for the six months ended June 30, 1997 and 1996,
respectively.
NOTE 6. LONG-TERM DEBT
Long-term debt at June 30, 1997, and December 31, 1996, consists of the
following:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
------------------ ------------------
(UNAUDITED)
-----------
<S> <C> <C>
Bank debt $ 677,875 $ 564,625
Exchange senior subordinated notes 250,000 250,000
Exchange senior subordinated discount notes 291,446 274,663
Mortgage and equipment notes 1,970 1,965
------------------ ------------------
Total debt 1,221,291 1,091,253
Current maturities (74,876) (42,376)
------------------ ------------------
Total long-term debt $ 1,146,415 $ 1,048,877
================== ==================
</TABLE>
9
<PAGE> 10
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
In May 1997, the Company amended to the Bank Credit Agreement to increase the
flexibility and borrowing capacity of its ongoing acquisition program. As a
result, the Company increased the availability under the Acquisition Facility
to $230.0 million. As of July 31, 1997, $144.0 million was outstanding under
the Acquisition Facility.
In July 1997, the Company entered into an interest rate cap agreement to reduce
the interest rate risk of its Senior Debt. The notional amount of this cap is
$100.0 million. Under the terms of this agreement, the Company receives
payment if the three month LIBOR rises above 7.00 percent through March 31,
1998.
Deferred Financing Costs
Costs incurred to obtain bank financing and issue bond financing for the
Acquisition are amortized over the lives of the various types of debt. Bank
financing costs are amortized over eight years and bond financing costs are
amortized over ten years using the effective interest rate method. An interest
rate cap agreement included in deferred financing costs is amortized over the
term of the agreement beginning November 1, 1996, and ending October 31, 1998.
Amortization expense for financing costs was $1,401 and $2,530 for the three
months and six months ended June 30, 1997, respectively. Interest expense for
the interest rate cap agreement was $456 and $911 for the three months and six
months ended June 30, 1997, respectively.
NOTE 7. COMMITMENTS AND CONTINGENCIES
Litigation and Claims
The Company is involved in certain lawsuits arising out of normal business
operations. The majority of these relate to accidents at bowling centers.
Management believes that the ultimate resolution of such matters will not have
a material adverse effect on Holdings' results of operations or financial
position. While the ultimate outcome of the litigation and claims against the
Company cannot presently be determined, management believes the Company has
made adequate provision for possible losses.
NOTE 8. EMPLOYEE BENEFIT PLANS
The total number of options to purchase shares of Parent Common Stock ("Stock
Options") currently reserved and available for grant under the AMF Holdings
Inc. 1996 Stock Incentive Plan (the "Stock Incentive Plan") is 1,767,151. On
June 11, 1997, the Executive Committee of the Parent's Board of Directors
approved the grant of Stock Options to participants of the Stock Incentive Plan
to purchase a total of 366,000 shares of Parent Common Stock at an exercise
price of $10.00 per share. The number of Stock Options outstanding to senior
management, other employees, and directors at June 30, 1997, after giving
effect to the grant and to forfeited Stock Options, total 1,418,000 at an
exercise price of $10.00 per share.
10
<PAGE> 11
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
NOTE 9. ACQUISITIONS
On April 24, 1997, the Company completed the acquisition of American Recreation
Centers, Inc. ("ARC"), which operated 43 bowling centers in six states. The
aggregate price of the ARC acquisition was approximately $70 million, including
repayment of certain debt and the purchase of related joint venture interests,
and was funded from available borrowing under the Acquisition Facility.
Between January 1, 1997 and June 30, 1997, the Company purchased an aggregate
of 64 centers in the United States, seven centers in the United Kingdom, two
centers in Australia, and certain related assets and liabilities from several
unrelated sellers including ARC. The total purchase price was approximately
$122.2 million, including certain adjustments and transaction costs, and was
funded with $103.5 million from available borrowing under the Company's
Acquisition Facility and the remainder from internally generated cash.
In addition, between July 1, 1997, and July 31, 1997, the Company acquired six
centers in the United States from two unrelated sellers. The aggregate
purchase price was approximately $13.9 million, and was entirely funded from
available borrowing under the Acquisition Facility. As a result of the
acquisitions, and after giving effect to the closing of six centers in 1997,
the Company owned or operated 327 U.S. centers and 87 international centers as
of July 31, 1997.
The Company has signed letters of intent and/or entered into purchase
agreements in July 1997 regarding the acquisition of 25 additional U.S. centers
from several unrelated sellers. The aggregate purchase price is expected to be
approximately $49.2 million, and will be funded primarily with available
borrowing under the Acquisition Facility.
In April 1997, the Company entered into a $40 million joint venture arrangement
with Hong Leong Corporation Limited, a Singapore based conglomerate. Pursuant
to the arrangement, the joint venture, to be owned 50% by the Company and 50%
by Hong Leong, is expected to build and operate up to 20 bowling centers,
during the next three years. These bowling centers, the first of which is
expected to open during 1997 in Tianjin, China, will be located in the
Philippines, Malaysia, Vietnam, Indonesia, Thailand and China.
In June 1997, the Company signed an agreement to enter into a joint venture
arrangement of approximately $100 million with Playcenter S.A., a Sao Paulo
based amusement and entertainment company. Pursuant to the arrangement, the
joint venture, to be owned 50% by the Company and 50% by Playcenter is expected
to build or assume ownership of, and operate, up to 39 bowling centers, in
Brazil and Argentina during the next four years.
The Company expects its total investments in the joint ventures with Hong Leong
and Playcenter to be approximately $12 million and $14 million, respectively,
and expects each joint venture to finance the construction of bowling centers
with financing that is non-recourse to the Company.
11
<PAGE> 12
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
NOTE 10. BUSINESS SEGMENTS
The Company operates in two major lines of business: operating bowling centers
and manufacturing of bowling and related products. Information concerning
operations in these businesses for the three months ended June 30, 1997 and
1996, respectively, is presented below (in millions):
<TABLE>
<CAPTION>
AMF GROUP HOLDINGS INC.
--------------------------------------------------------------------------------------------
THREE MONTHS ENDED JUNE 30, 1997
BOWLING CENTERS BOWLING PRODUCTS
------------------------ --------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
--- -------- ----- ---- -------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 66.1 $ 26.5 $ 92.6 $ 24.2 $ 43.7 $ 67.9 $ - $ - $ 160.5
Intersegment sales - - - 3.3 1.5 4.8 - - 4.8
Operating income (loss) (0.3) 3.1 2.8 9.4 4.8 14.2 (4.8) 0.4 12.6
Depreciation and amortization 13.6 4.7 18.3 4.8 0.3 5.1 - (0.4) 23.0
Capital expenditures 15.0 1.5 16.5 1.0 0.2 1.2 1.1 (0.1) 18.7
Research and development expense - - - 0.7 - 0.7 - - 0.7
</TABLE>
<TABLE>
<CAPTION>
AMF GROUP HOLDINGS INC.
--------------------------------------------------------------------------------------------
THREE MONTHS ENDED JUNE 30, 1997
BOWLING CENTERS BOWLING PRODUCTS
------------------------ --------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
--- -------- ----- ---- -------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 23.3 $ 16.2 $ 39.5 $ 15.7 $ 18.2 $ 33.9 $ - $ - $ 73.4
Intersegment sales - - - 0.6 1.3 1.9 - - 1.9
Operating income (loss) (3.6) 2.3 (1.3) 4.5 1.2 5.7 (0.2) (0.2) 4.0
Depreciation and amortization 6.2 2.6 8.8 3.0 0.1 3.1 - (0.2) 11.7
Capital expenditures 1.5 1.7 3.2 0.2 0.2 0.4 - (0.3) 3.3
Research and development expense - - - 1.1 - 1.1 - - 1.1
</TABLE>
<TABLE>
<CAPTION>
PREDECESSOR COMPANY
----------------------------------------------------------------------------------------
ONE MONTH ENDED APRIL 30, 1996
BOWLING CENTERS BOWLING PRODUCTS
------------------------ --------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
--- -------- ----- ---- -------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 16.9 $ 8.5 $ 25.4 $ 9.4 $ 6.8 $ 16.2 $ - $ - $ 41.6
Intersegment sales - - - 0.4 1.3 1.7 - - 1.7
Operating loss (11.7) (8.2) (19.9) (13.4) (3.4) (16.8) - (0.2) (36.9)
Depreciation and amortization 3.5 0.5 4.0 0.3 - 0.3 - (0.2) 4.1
Capital expenditures 1.6 1.1 2.7 0.1 - 0.1 - (0.3) 2.5
Research and development expense - - - 0.4 - 0.4 - - 0.4
</TABLE>
12
<PAGE> 13
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
Information concerning operation of bowling centers and manufacturing of
bowling and related products for the six months ended June 30, 1997 and 1996,
respectively, is presented below (in millions):
<TABLE>
<CAPTION>
AMF GROUP HOLDINGS INC.
--------------------------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, 1997
BOWLING CENTERS BOWLING PRODUCTS
----------------------------- ---------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
---- -------- ----- ---- ------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 148.7 $ 52.4 $ 201.1 $ 47.7 $ 69.3 $ 117.0 $ - $ - $ 318.1
Intersegment sales - - - 5.3 2.4 7.7 - - 7.7
Operating income (loss) 22.8 5.9 28.7 16.1 5.3 21.4 (8.4) 0.7 42.4
Identifiable assets 729.0 306.1 1,035.1 615.7 58.2 673.9 5.8 0.6 1,715.4
Depreciation and amortization 25.1 9.2 34.3 9.3 0.6 9.9 - (0.8) 43.4
Capital expenditures 19.0 3.0 22.0 1.9 0.4 2.3 1.5 (0.2) 25.6
Research and development expense - - - 0.7 - 0.7 - - 0.7
</TABLE>
<TABLE>
<CAPTION>
AMF GROUP HOLDINGS INC.
--------------------------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, 1997
BOWLING CENTERS BOWLING PRODUCTS
----------------------------- ---------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
---- -------- ----- ---- ------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 23.3 $ 16.2 $ 39.5 $ 15.7 $ 18.2 $ 33.9 $ - $ - $ 73.4
Intersegment sales - - - 0.6 1.3 1.9 - - 1.9
Operating income (loss) (3.6) 2.3 (1.3) 4.5 1.2 5.7 (0.2) (0.2) 4.0
Depreciation and amortization 6.2 2.6 8.8 3.0 0.1 3.1 - (0.2) 11.7
Capital expenditures 1.5 1.7 3.2 0.2 0.2 0.4 - (0.3) 3.3
Research and development expense - - - 1.1 - 1.1 - - 1.1
</TABLE>
<TABLE>
<CAPTION>
PREDECESSOR COMPANY
--------------------------------------------------------------------------------------------
FOUR MONTHS ENDED APRIL 30, 1996
BOWLING CENTERS BOWLING PRODUCTS
----------------------------- ---------------------------
INTER- SUB- INTER- SUB- ELIM-
U.S. NATIONAL TOTAL U.S. NATIONAL TOTAL CORPORATE INATIONS TOTAL
---- -------- ----- ---- -------- ----- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue from unaffiliated customers $ 75.0 $ 33.5 $ 108.5 $ 27.7 $ 28.7 $ 56.4 $ - $ - $ 164.9
Intersegment sales - - - 3.4 1.2 4.6 - - 4.6
Operating income (loss) 3.6 (2.5) 1.1 (6.5) (3.1) (9.6) (0.5) - (9.0)
Depreciation and amortization 11.9 2.5 14.4 1.0 0.2 1.2 - (0.5) 15.1
Capital expenditures 5.1 2.3 7.4 0.4 - 0.4 - (0.9) 6.9
Research and development expense - - - 0.8 - 0.8 - - 0.8
</TABLE>
NOTE 11. CONSOLIDATING FINANCIAL STATEMENTS
The following consolidating financial information presents:
- Consolidating balance sheet as of June 30, 1997, and consolidating
statements of income and cash flows for the six months ended June 30,
1997.
- Elimination entries necessary to combine the entities comprising
Holdings.
The Exchange Notes are jointly and severally guaranteed on a full and
unconditional basis by Holdings and by the first and second-tier subsidiaries
of the Company. Third-tier subsidiaries of the Company have not provided
guarantees.
13
<PAGE> 14
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
AS OF JUNE 30, 1997
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NON-
GUARANTOR GUARANTOR
COMPANIES COMPANIES ELIMINATIONS CONSOLIDATED
--------- --------- ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents $ 15,651 $ 989 $ - $ 16,640
Accounts and notes receivable, net
of allowance for doubtful accounts 55,738 1,382 - 57,120
Accounts receivable - intercompany 2,889 4,609 (7,498) -
Inventories 54,535 1,953 - 56,488
Deferred taxes and other 11,343 1,867 - 13,210
--------------- ----------------- ----------------- --------------------
Total current assets 140,156 10,800 (7,498) 143,458
Notes receivable - intercompany 6,771 10,663 (17,434) -
Property and equipment, net 702,932 39,712 1,031 743,675
Investment in subsidiaries 26,099 - (26,099) -
Goodwill and other assets 821,781 6,518 - 828,299
--------------- ----------------- ----------------- --------------------
Total assets $ 1,697,739 $ 67,693 $ (50,000) $ 1,715,432
=============== ================= ================= ====================
LIABILITIES AND STOCKHOLDER'S EQUITY
- ------------------------------------
Current liabilities:
Accounts payable $ 30,786 $ 1,971 $ - $ 32,757
Accounts payable - intercompany 74 7,424 (7,498) -
Accrued expenses 49,769 4,781 - 54,550
Income taxes payable 3,218 1,270 - 4,488
Note payable 30,000 - - 30,000
Long-term debt, current portion 44,876 - - 44,876
--------------- ----------------- ----------------- --------------------
Total current liabilities 158,723 15,446 (7,498) 166,671
Long-term debt 1,137,415 9,000 - 1,146,415
Notes payable - intercompany 1,327 16,107 (17,434) -
Other long-term liabilities 6,383 - - 6,383
Deferred income taxes 3,881 1,041 - 4,922
--------------- ----------------- ----------------- --------------------
Total liabilities 1,307,729 41,594 (24,932) 1,324,391
--------------- ----------------- ----------------- --------------------
Commitments and contingencies
Stockholder's equity:
Common stock - 3,940 (3,940) -
Paid-in capital 427,446 24,522 (22,518) 429,450
Retained earnings (deficit) (31,270) 3,174 (4,147) (32,243)
Equity adjustment from foreign
currency translation (6,166) (5,537) 5,537 (6,166)
--------------- ----------------- ----------------- --------------------
Total stockholder's equity 390,010 26,099 (25,068) 391,041
--------------- ----------------- ----------------- --------------------
Total liabilities and stockholder's equity $ 1,697,739 $ 67,693 $ (50,000) $ 1,715,432
=============== ================= ================= ====================
</TABLE>
14
<PAGE> 15
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 1997
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NON-
GUARANTOR GUARANTOR
COMPANIES COMPANIES ELIMINATIONS CONSOLIDATED
--------- --------- ------------ ------------
<S> <C> <C> <C> <C>
Operating revenue $ 298,354 $ 20,625 $ (911) $ 318,068
--------------- ------------ ------------ --------------
Operating expenses:
Cost of goods sold 83,875 2,818 (609) 86,084
Bowling center operating expenses 105,290 10,938 (190) 116,038
Selling, general, and administrative expenses 28,714 1,458 - 30,172
Depreciation and amortization 40,632 2,985 (193) 43,424
--------------- ------------ ------------ --------------
Total operating expenses 258,511 18,199 (992) 275,718
--------------- ------------ ------------ --------------
Operating income 39,843 2,426 81 42,350
Nonoperating expenses (income):
Interest expense 57,180 274 - 57,454
Other (income) expense, net (86) 1,079 1,327 2,320
Interest income (948) (107) - (1,055)
Equity in earnings of subsidiaries 246 - (246) -
--------------- ------------ ------------ --------------
Total nonoperating expenses 56,392 1,246 1,081 58,719
--------------- ------------ ------------ --------------
Income (loss) before income taxes (16,549) 1,180 (1,000) (16,369)
Provision (benefit) for income taxes (5,617) 1,426 - (4,191)
--------------- ------------ ------------ --------------
Net loss $ (10,932) $ (246) $ (1,000) $ (12,178)
=============== ============ ============ ==============
</TABLE>
15
<PAGE> 16
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
AMF GROUP HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1997
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NON-
GUARANTOR GUARANTOR
COMPANIES COMPANIES ELIMINATIONS CONSOLIDATED
--------- --------- ------------ ------------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (10,932) $ (246) $ (1,000) $ (12,178)
Adjustments to reconcile net loss to net
cash provided by operating activities:
Depreciation and amortization 40,632 2,985 (193) 43,424
Deferred income taxes (1,775) - - (1,775)
Amortization of bond discount 16,788 - - 16,788
Equity in earnings of subsidiaries (246) - 246 -
Loss on the sale of property and equipment, net 94 - - 94
Changes in assets and liabilities:
Accounts and notes receivable (17,750) (192) - (17,942)
Receivables and payables - affiliates (4,502) 4,502 - -
Inventories (15,383) (494) - (15,877)
Other assets (20,128) (774) (492) (21,394)
Accounts payable and accrued expenses (50) 1,482 - 1,432
Income taxes payable 1,745 503 - 2,248
Other long-term liabilities 13,345 - - 13,345
-------------- ------------ --------------- ---------------
Net cash provided by (used in) operating activities 1,838 7,766 (1,439) 8,165
-------------- ------------ --------------- ---------------
Cash flows from investing activities:
Acquisitions of operating units, net of cash acquired (105,444) (16,721) - (122,165)
Purchases of property and equipment (24,228) (1,523) 112 (25,639)
Proceeds from sale of property and equipment 268 - - 268
-------------- ------------ --------------- ---------------
Net cash provided by (used in) investing activities (129,404) (18,244) 112 (147,536)
-------------- ------------ --------------- ---------------
Cash flows from financing activities:
Proceeds from long-term debt, net of deferred
financing costs 124,500 9,000 133,500
Payment on long-term debt (20,250) - - (20,250)
Dividend to Parent (500) (1,327) 1,327 (500)
Noncompete obligations (322) - - (322)
-------------- ------------ --------------- ---------------
Net cash provided by financing activities 103,428 7,673 1,327 112,428
-------------- ------------ --------------- ---------------
Effect of exchange rates on cash 112 (97) - 15
-------------- ------------ --------------- ---------------
Net decrease in cash (24,026) (2,902) - (26,928)
Cash and cash equivalents at beginning of period 39,677 3,891 - 43,568
-------------- ------------ --------------- ---------------
Cash and cash equivalents at end of period $ 15,651 $ 989 $ - $ 16,640
============== ============ =============== ===============
</TABLE>
16
<PAGE> 17
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Information in this report contains certain forward-looking statements, which
are statements other than historical information or statements of current
condition. Some forward-looking statements may be identified by use of terms
such as "believes", "anticipates", "intends", or "expects". The
forward-looking statements contained in this report are generally located in
the material set forth under the heading "Management's Discussion and Analysis
of Financial Condition and Results of Operations". These forward-looking
statements relate to the plans and objectives of the Company for future
operations. In light of the risks and uncertainties inherent in all future
projections, the inclusion of forward-looking statements in this report should
not be regarded as a representation by the company or any other person that the
objectives or plans of the Company will actually be achieved. Many factors
could cause the Company's actual results to differ materially from those in the
forward-looking statements, including, among other things: (i) the Company's
ability to identify and successfully execute acquisition opportunities and to
integrate acquired operations into its business, (ii) the continued development
and growth of new bowling markets and the Company's ability to continue to
identify those markets and to generate sales of products in those markets
before market saturation, (iii) the risk of adverse political acts or
developments in the Company's existing or proposed markets for its products or
in which it operates its bowling centers, (iv) the Company's ability to retain
experienced senior management, (v) the ability of the Company and its
subsidiaries to generate sufficient cash flow in a timely manner to satisfy
principal and interest payments on their indebtedness, and (vi) the popularity
of bowling as an activity in the United States and abroad. In addition, actual
results may also differ materially from forward-looking statements in this
report as a result of factors generally applicable to companies in similar
businesses, among other things: (i) a decline in general economic conditions,
(ii) an adverse judgment in pending or future litigation, and (iii) increased
competitive pressure from current competitors and future market entrants. The
foregoing review of important factors should not be construed as exhaustive and
should be read in conjunction with other cautionary statements that are
included in this report. The Company undertakes no obligation to release
publicly the results of any future revisions it may make to forward-looking
statements to reflect events or circumstances after the date hereof or to
reflect the occurrence of unanticipated events.
BACKGROUND
This discussion should be read in conjunction with the "Selected Financial
Data" and the Consolidated Financial Statements (unaudited) and Notes thereto
included elsewhere within this report.
Management believes that a comparison of the results of operations for the
three and six months ended June 30, 1997 and 1996, on a pro forma basis is more
meaningful than a comparison on an historical basis. This is due primarily to
significant changes in depreciation and amortization that result from the
application of the purchase method of accounting for the Acquisition, and from
the increased interest expense due to the debt incurred related to the
Acquisition. Accordingly, the following discussion of the results of operations
includes comparisons of the three and six months ended June 30, 1997, on an
historical basis, with pro forma results for the three and six months ended
June 30, 1996. See "Note 3. Pro Forma Results of Operations" in the Notes to
the Consolidated Financial Statements.
The financial information presented below includes the Company's operating
results expressed in terms of EBITDA, which represents earnings before net
interest expense, income taxes, depreciation and amortization, and other net
income or net expenses. EBITDA information is included because the Company
understands that such information is used by certain investors as one measure
of an issuer's historical ability to service debt. EBITDA is not intended to
represent and should not be considered more meaningful than, or an alternative
to, other measures of performance determined in accordance with generally
accepted accounting principles.
GENERAL
The Company is principally engaged in two business segments: (i) the ownership
and operation of 321 U.S. centers and 87 international centers ("Bowling
Centers") as of June 30, 1997; and (ii) the design, manufacture and sale of
bowling center equipment, including automatic pinspotters, automatic scoring
equipment, bowling pins, lanes, ball
17
<PAGE> 18
returns, and certain spare and replacement parts, and the resale of allied
products such as bowling balls, bags, shoes, and certain other spare and
replacement parts ("Bowling Products").
To facilitate a meaningful comparison, in addition to discussing the
consolidated results of the Company, this Management's Discussion and Analysis
of Financial Condition and Results of Operations separately discusses certain
results of Bowling Centers and Bowling Products.
The results of Bowling Centers, Bowling Products and the consolidated group are
set forth below. The two European centers that were not acquired by the
Company, as discussed in "Note 1. Organization" in the Notes to the
Consolidated Financial Statements, are included in the 1996 actual Predecessor
Company results and excluded from 1996 pro forma results. The two centers have
no material impact on the Company's financial statements or on the information
presented in this section.
Results presented below are before intersegment eliminations, since management
believes that this will provide a more accurate comparison of performance by
segment from year to year. The intersegment eliminations are not material.
Interest expense is presented on a gross basis.
ACQUISITIONS
The Company is prepared to acquire or build additional centers as appropriate
opportunities arise. The Company is engaged in ongoing evaluations of and
discussions with third parties regarding possible acquisitions. Management's
plans to expand the bowling center operations are subject to the continuation
of favorable economic and financial conditions, which are generally not within
the Company's control.
Between January 1, 1997 and June 30, 1997, the Company acquired an aggregate of
64 centers in the United States, seven centers in the United Kingdom, and two
centers in Australia from several unrelated sellers. In April 1997, the
Company entered into a joint venture arrangement with Hong Leong Corporation
Limited, a Singapore based conglomerate. In June 1997, the Company signed an
agreement to enter into a joint venture arrangement with Playcenter, S.A., a
Sao Paulo based amusement and entertainment company. See "Note 9.
Acquisitions" in the Notes to Consolidated Financial Statements for a
discussion of these transactions.
18
<PAGE> 19
AMF GROUP HOLDINGS INC.
SELECTED FINANCIAL DATA
(UNAUDITED)
(IN MILLIONS OF DOLLARS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------------- ------------------------------
AMF GROUP HOLDINGS INC. AMF GROUP HOLDINGS INC.
--------------------------------- ------------------------------
PRO FORMA PRO FORMA
-------------- ---------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
BOWLING CENTERS (before intersegment eliminations)
Operating revenue $ 92.6 $ 64.7 $ 201.1 $ 147.2
------------- ------------ ------------ -------------
Cost of goods sold 8.9 5.8 18.3 12.6
Bowling center operating expenses 61.0 41.4 116.6 83.3
Selling, general, and administrative expenses 1.6 1.8 3.2 3.0
Depreciation and amortization 18.3 16.9 34.3 26.1
------------- ------------ ------------ -------------
Operating income (loss) 2.8 (1.2) 28.7 22.2
============= ============ ============ =============
BOWLING PRODUCTS (before intersegment eliminations)
Operating revenue $ 72.7 $ 53.8 $ 124.7 $ 96.8
Cost of goods sold 43.5 32.6 74.7 58.2
------------- ------------ ------------ -------------
Gross profit 29.2 21.2 50.0 38.6
Selling, general and administrative expenses 9.9 7.7 18.7 15.7
Depreciation and amortization 5.1 5.0 9.9 9.4
------------- ------------ ------------ -------------
Operating income (loss) $ 14.2 $ 8.5 $ 21.4 $ 13.5
============= ============ ============ =============
CONSOLIDATED
Operating revenue $ 160.5 $ 114.8 $ 318.1 $ 237.5
------------- ------------ ------------ -------------
Cost of goods sold 48.0 35.9 86.1 66.5
Bowling center operating expenses 60.7 40.8 116.0 82.5
Selling, general and administrative expenses 16.2 11.2 30.2 22.7
Depreciation and amortization 23.0 21.6 43.4 34.9
------------- ------------ ------------ -------------
Operating income (loss) 12.6 5.3 42.4 30.9
Interest expense, gross 29.8 25.6 57.5 52.2
Other (income) expense, net 0.4 (2.2) 1.3 (3.4)
------------- ------------ ------------ -------------
Loss before income taxes (17.6) (18.1) (16.4) (17.9)
Provision for income taxes (5.3) (4.5) (4.2) (4.4)
------------- ------------ ------------ -------------
Net loss $ (12.3) $ (13.6) $ (12.2) $ (13.5)
============= ============ ============ =============
</TABLE>
BOWLING CENTERS
Quarter Ended June 30, 1997 Compared to Quarter Ended June 30, 1996
Of the $27.9 million, or 43.1%, increase in Bowling Centers operating revenue,
$27.0 million was attributable to new centers, of which $24.8 million was from
U.S. centers, and $2.2 million was from international centers, that were
acquired since May 1996. Constant centers (defined as centers in operation for
at least one full fiscal year) operating revenue increased $2.2 million, or
3.5%, primarily as a result of higher lineage (defined as games per lane per
day), average price per game, and food and beverage prices in the U.S. centers.
The constant center increase was net of a $1.0 million decrease in revenue from
the Japanese centers in 1997 which was primarily caused by recent poor economic
conditions in Japan. A decrease in total Bowling Center operating revenue of
$1.3 million was attributable to seven U.S. centers which were closed in May
1996, and February and May, 1997, respectively.
Cost of goods sold increased $3.1 million, or 53.4%, primarily as a result of
new centers.
19
<PAGE> 20
Of the $19.6 million, or 47.3%, increase in Bowling Centers operating expenses,
approximately $18.7 million was attributable to new centers. Of this amount,
new U.S. and international centers accounted for approximately $17.5 million
and $1.2 million, respectively. As a percentage of its revenue, Bowling
Centers operating expenses were 64.0% for the quarter ended June 30, 1996, on a
pro forma basis, versus 65.9% for the quarter ended June 30, 1997.
A decrease of $0.2 million, or 11.1%, in selling, general, and administrative
expenses was attributable to savings associated with closed centers, partially
offset by additional expenses due to new centers.
An increase of $5.4 million, or 34.4%, in EBITDA was attributable to new
centers. EBITDA margin decreased from 24.3% for the quarter ended June 30,
1996, on a pro forma basis, to 22.8% for the quarter ended June 30, 1997.
EBITDA margin was affected, as expected, by the increasing proportion of U.S.
centers purchased. U.S. centers typically have lower margins in the second
quarter compared to international centers and compared to U.S. margins in the
first and fourth quarters of the year, primarily because revenues decline in
the second quarter as fall leagues finish the season.
Six Months Ended June 30, 1997 Compared to Six Months Ended June 30, 1996
Of the $53.9, or 36.6%, increase in Bowling Centers operating revenue, $52.5
million was attributable to new centers, of which $48.8 million was from U.S.
centers, and $3.7 million was from international centers. An increase of $2.8
million, or 1.9%, in constant centers revenue was primarily a result of an
increase in revenue in the Northeast region of the U.S., a region in which the
Company has a large number of centers and which experienced severe weather
conditions during the first quarter of 1996. The increase in constant centers
revenue in the first six months of 1997 compared to the same period in 1996 was
net of $1.0 million additional revenue in 1996 due to leap year, and a $1.6
million decrease in revenue from the Japanese centers in 1997, which was
primarily caused by recent poor economic conditions in Japan. A decrease in
operating revenue of $1.4 million was attributable to seven U.S. centers which
were closed in May 1996, and February and May, 1997, respectively.
Cost of goods sold increased $5.7 million, or 45.2%, primarily as a result of
new centers.
Of the increase of $33.3 million, or 40.0%, in operating expenses,
approximately $31.4 million was attributable to new centers, of which $29.4
million was attributable to U.S. centers and $2.0 million was attributable to
international centers. As a percentage of its revenue, Bowling Centers
operating expenses were 56.6% for the six months ended June 30, 1996, on a pro
forma basis, versus 58.0% for the six months ended June 30, 1997.
An increase of $0.2 million, or 6.7%, in selling, general, and administrative
expenses was primarily attributable to new centers.
Of the increase of $14.7 million, or 30.4%, in EBITDA was attributable to new
centers. EBITDA margin decreased from 32.8% for the six months ended June 30,
1996, on a pro forma basis, to 31.3% for the six months ended June 30, 1997.
EBITDA margin for the six months period ended June 30 was affected, as
expected, by the increasing proportion of U.S. centers purchased. U.S. centers
typically have lower margins in the second quarter compared to international
centers and compared to U.S. margins in the first and fourth quarters of the
year, primarily because revenues decline in the second quarter as fall leagues
finish the season.
BOWLING PRODUCTS
Bowling Products consists of three categories of products -- New Center
Packages (NCPs), Modernization, and Consumer Products. NCPs include the
equipment necessary to outfit new or systems expand existing bowling centers,
such as pinspotters, lanes, automatic scoring systems, bowler seating, ball
returns, masking units, bumpers, etc. Modernization is the equipment
necessary to upgrade and modernize existing bowling centers and includes many
of the same items sold in NCPs, but in differing combinations depending on
operators' specific needs. Consumer Products includes supplies
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<PAGE> 21
and consumable items that bowling center operators use on a regular basis such
as pins, spare parts and lane supplies; small equipment such as lane
maintenance machines that operators purchase less frequently but use on a
regular basis; and resale products, such as balls, bags, shoes, and other
bowlers' aids, sold primarily through pro shops. Consumer Products also
includes PlayMaster billiard tables. Most NCPs also include some Consumer
Products, such as pins, lane cleaning machines, house balls, etc., that
operators need to completely outfit their centers. AMF brands include 8800 Gold
and 8290 pinspotters, AccuScore automatic scoring, HPL synthetic lanes, Century
lane machines, Dimensions masking units, and Xtreme glow-in-the-dark packages.
Quarter Ended June 30, 1997 Compared to Quarter Ended June 30, 1996
Bowling Products operating revenue increased by $18.9 million, or 35.1%,
primarily as a result of an increase of $18.3 million, or 88.4%, in NCP
revenue, and an increase of $0.3 million, or 0.9%, in Modernization and
Consumer Products revenues. The increase in NCP revenue was due to an overall
increase in NCP sales of 450 units which occurred primarily in China, Malaysia
and the Americas. See--"Seasonality and Cyclicality".
Total gross profit from Bowling Products increased by $8.0 million, or 37.7%,
primarily as a result of increased NCP sales. Gross profit margin was 39.4%
and 40.2% for the three months ended June 30, 1996 and 1997, respectively.
Bowling Products selling, general and administrative expenses increased by $2.2
million, or 28.6%, as a result of an increase of $1.2 million primarily
attributable to increased payroll and facilities expenses relating to the
staffing of the Company's international sales and service offices, an increase
of $1.3 million attributable to increased advertising and promotion expenses in
the U.S. locations. These increases were offset by a decrease of $0.3 million
attributable to payroll, facilities and related expenses at U.S. locations.
EBITDA margin increased from 25.1% to 26.6% primarily due to the increased NCP
revenue, offset in part by the increased expenses discussed above.
Six Months Ended June 30, 1997 Compared to Six Months Ended June 30, 1996
Bowling Products operating revenue increased by $27.9 million, or 28.8%,
primarily due to an increase of $25.3 million, or 67.5%, in NCP revenue, and an
increase of $2.0 million, or 3.4%, in Modernization and Consumer Products
revenue. The increase in NCP revenue was due to an overall increase in NCP
sales of 781 units which occurred primarily in China, Malaysia, the Americas
and Japan. See "--Seasonality and Cyclicality".
Total gross profit from Bowling Products increased by $11.4 million, or 29.5%,
primarily as a result of increased NCP sales. Gross profit margin was 39.9%
and 40.1% for the six months ended June 30, 1996 and 1997, respectively.
Bowling Products selling, general and administrative expenses increased by $3.0
million, or 19.1%, primarily as a result of a $2.4 million increase
attributable to payroll and facilities expenses related to staffing the
Company's international sales and service offices, and an increase of $1.5
million attributable to advertising and promotion expenses in the U.S.
locations. These increases were offset by a decrease of $0.9 million in
payroll, facilities and related expenses at U.S. locations.
EBITDA margin increased from 23.7% to 25.1% primarily due to the increased NCP
revenue, offset in part by the increased expenses discussed above.
CONSOLIDATED
Depreciation and Amortization
Depreciation and amortization increased by $1.4 million, or 6.5%, in the
quarter, and $8.5 million, or 24.4%, in the six months ended June 30, 1997 over
the comparable periods in the prior year. The increases for the second quarter
and the six months were attributable to Bowling
21
<PAGE> 22
Centers and were primarily due to depreciation of property and equipment of
centers acquired since May 1996 and incremental depreciation expense incurred
as a result of capital expenditures.
Interest Expense
Gross interest expense increased by $4.2 million, or 16.4%, in the quarter, and
$5.3 million, or 10.2%, in the six months ended June 30, 1997 over the
comparable period in the prior year. The increases for the quarter and the six
months were both primarily due to interest paid on increased levels of bank
debt as a result of the acquisitions described above. See "--Liquidity and
Capital Resources" for further discussion of bank debt. Non-cash bond interest
amortization totaled $8.5 million and $16.8 million for the quarter and six
months ended June 30, 1997, respectively.
Net Loss
Net loss decreased $1.3 million, or 9.6%, in the quarter, and six months ended
June 30, 1997 as a result of increases in revenues and EBITDA discussed above
on a segment basis offset by increases in depreciation expense and the current
tax provision for the Company.
Income Taxes
When they were owned by the Sellers, certain companies within the Predecessor
Company elected S corporation status under the Internal Revenue Code. As S
corporations, the companies were historically liable for U.S. federal income
taxes under certain circumstances and liable for state income taxes in certain
jurisdictions. All other domestic income taxes were the responsibility of the
stockholders. The international branches of the S corporations and other
international entities historically filed income tax returns and paid taxes in
their respective countries. The prior stockholders historically received a tax
credit, subject to certain limitations, in their U.S. federal income tax
returns for international taxes paid by the international branches of the S
corporations and certain other international entities.
Upon consummation of the Acquisition, the U.S. subsidiaries of the Company,
which had been S corporations, became taxable corporations under the Internal
Revenue Code.
Liquidity and Capital Resources
The following discussion of liquidity and capital resources compares Holdings'
results for the six months ended June 30, 1997 with the six months ended June
30, 1996, on an historical basis.
The Company's primary source of liquidity is cash provided by operations and
credit facilities as described below. Working capital on December 31, 1996 was
$7.9 million compared to a negative $23.2 million as of June 30, 1997, a
decrease of $31.1 million. Cash decreased $27.0 million primarily as a result
of payments on bank debt and internal funding of certain bowling center
acquisitions, and the note payable increased $30.0 million as a result of
drawing down available borrowings under the Working Capital Facility to fund
increases in working capital. Accounts receivable increased $14.5 million
primarily as a result of increased NCP revenues, and inventory increased $15.5
million in advance of future shipments. These increases in working capital
were partially offset by a decrease of $4.1 million caused by changes in
other current assets and liabilities.
Net cash flows used in operating activities were $ 28.0 million for the six
months ended June 30, 1996 compared to net cash provided of $8.2 million for
the six months ended June 30, 1997, a difference of $36.2 million. Net cash
provided resulted from a decrease of $0.1 million in net loss, an increase of
$31.7 million in depreciation and amortization primarily as a result of
application of the purchase method of accounting for the Acquisition, an
increase of $8.0 million in amortization of the discount related to bonds used
to partially fund the Acquisition, a net loss of $0.1 million on the sale of
property and equipment, a net change of $3.3 million in deferred taxes and
income taxes payable, and a change of $19.8 million in other assets and
liabilities. Net cash used resulted from an increase of $14.3 million in
accounts receivable primarily resulting from the increased levels of NCP sales
compared to the same period in 1996, and an increase of $12.5 million in
inventory primarily reflecting the increased backlog of NCP orders to be
shipped after June 30, 1997.
22
<PAGE> 23
Net cash flows used in investing activities were $1,336.3 million for the six
months ended June 30, 1996 compared to net cash flows used of $147.5 million
for the six months ended June 30, 1997. During the six months ended June 30,
1996, cash flows used for the Acquisition totaled $1,333.0 million, capital
spending was $3.3 million and other investing cash flows provided were $0.1
million. During the six months ended June 30, 1997, acquisitions of centers
totaled $122.2 million, capital spending was $25.6 million, and other cash
flows provided by investing activities were $0.3 million. See "Note 9.
Acquisitions" and "Capital Expenditures" for additional discussion of these
investing activities.
Net cash provided by financing activities was $1,409.8 million for the six
months ended June 30, 1996 compared to net cash provided of $112.4 million for
the six months ended June 30, 1997. During the six months ended June 30, 1996,
cash flows were primarily provided by $1,029.9 million of proceeds of long term
debt and $380.3 million from a capital contribution, both of which were used to
fund the Acquisition. During the six months ended June 30, 1997, cash flows
were primarily provided by drawing down $103.5 million and $30.0 million from
available borrowings under the Acquisition Facility and the Working Capital
Facility, respectively, to fund the acquisitions of bowling centers discussed
above and to fund increases in working capital. During 1997, funds were used
primarily for the payment of long term debt totaling $20.3 million, and a
dividend of $0.5 million to the Parent on February 28, 1997, for the repurchase
of common stock.
As a result of the aforementioned, cash increased by $45.1 million for the six
months ended June 30, 1996 compared to a decrease of $26.9 million for the six
months ended June 30, 1997.
As a result of the Acquisition, the Company's total indebtedness increased
substantially. At June 30, 1997, the Company's debt structure consisted of
Senior Debt of $679.9 million, senior subordinated notes of $250.0 million and
senior subordinated discount notes of $291.4 million. At June 30, 1997, the
Company was also capitalized with equity of $391.4 million. Subject to certain
conditions, the Company also has the ability to borrow $50.0 million for
general corporate purposes pursuant to a Working Capital Facility and up to
$230.0 million for acquisitions pursuant to the Acquisition Facility. At June
30, 1997, $112.0 million and $30.0 million was outstanding under the
Acquisition Facility and the Working Capital Facility, respectively. Between
June 30, 1997 and July 31, 1997, additional borrowings under the Acquisition
facility totaled $32.0 million and were used to fund the acquisitions of
bowling centers. In addition, the Company borrowed an additional $10.0 million
under the Working Capital Facility to fund increases in working capital. At
July 31, 1997, $144.0 million and $40.0 million was outstanding under the
Acquisition Facility and the Working Capital Facility, respectively.
The Company funds its cash needs through cash flow from operations, existing
cash balances and the Working Capital Facility and Acquisition Facility. A
substantial portion of the Company's available cash will be applied to service
the indebtedness incurred to finance the Acquisition.
The indentures and the Bank Credit Agreement contain financial and operating
covenants and significant restrictions on the ability of the Company to pay
dividends, incur indebtedness, make investments and take certain other
corporate actions.
In May 1997, the Company completed an amendment to the Bank Credit Agreement
which increased the availability under the Acquisition Facility to $230.0
million. In July 1997, the Company entered into an interest rate cap agreement
to reduce the interest rate risk of its Senior Debt. The notional amount of
this cap is $100.0 million. See "Note 6. Long-term Debt" for additional
discussion of these agreements.
The Company's ability to make scheduled payments of principal of, or to pay
interest on, or to refinance its indebtedness depends on its future
performance, which, to a certain extent, is subject to general economic,
financial, competitive, legislative, regulatory and other factors beyond its
control. Based upon the current level of operations and anticipated growth,
management believes that available cash flow, together with available
borrowings under the Bank Credit Agreement and other sources of liquidity, are
adequate to meet the Company's anticipated future requirements for working
capital, capital expenditures, scheduled payments of principal of, and interest
on, its Senior Debt, and interest on the Exchange Notes. There can be no
assurance that the Company's business will generate sufficient cash flow from
operations or that future borrowings will be available in an amount sufficient
to enable the Company to service its indebtedness, including the Exchange
Notes, or that any refinancing would be available on commercially reasonable
terms or at all.
23
<PAGE> 24
Capital Expenditures
For the six months ended June 30, 1997, the Company's actual capital
expenditures were $25.6 million compared to $10.2 million, on a pro forma basis
(defined as expenditures of the acquired business from January 1 through June
30), for the six months ended June 30, 1996. The increase was primarily due to
an ongoing modernization program in Bowling Centers, a new point-of-sale
information system in U.S. centers, new Company wide information systems, and
construction of a new 40 lane, state-of-the-art family entertainment center in
New York City.
The Company funds its capital expenditures from cash generated by operations
and, with respect to the construction and acquisition of new centers,
internally generated cash and the Acquisition Facility. See "Note 9.
Acquisitions" in the Notes to Consolidated Financial Statements and "Liquidity
and Capital Resources" for discussions of funding of acquisitions of new
centers.
Seasonality and Cyclicality
On a consolidated basis, revenue and EBITDA of the Company's businesses are
neither highly seasonal nor highly cyclical. The geographic diversity of
Bowling Centers operations across different regions of the U.S. and across ten
different countries, along with the bowling industry's historic insulation to
recessions, has provided stability to the Company's annual cash flows.
Although financial performance of Bowling Centers operations is seasonal
in nature in many countries, with cash flows typically peaking in the winter
months and reaching their lows in the summer months, the geographic diversity
of these operations has helped reduce this seasonality. As a result of the
growing number of U.S. centers attributable to the Company's acquisition
program, the seasonality described above may be accentuated. In Australia,
where the Company has its largest number of international centers, the reversal
of seasons relative to the U.S. helps mitigate the seasonality in worldwide
operations. The Company's cash flows are further stabilized by the location of
many centers in markets where the climates have high average temperatures and
high humidity. In the United States, during the summer months when league
bowling is generally less active, the Company's centers in the southern U.S.
continue to show strong performance. The same applies internationally in
countries with warm summer climates such as Hong Kong and Mexico, where bowling
in air-conditioned centers may be more attractive than outdoor activities. See
"Note 10. Business Segments" for geographic information on the Company's
business.
The NCP segment of Bowling Products experiences significant fluctuations due to
changes in demand for NCPs as certain markets experience high growth followed
by market maturity, at which time sales to that market decline, sometimes
rapidly. Market cycles for individual countries have, in the past, spanned
several years, with periods of high demand for several markets (e.g., Japan,
Korea, Taiwan,) which, in the Company's experience, last five years or more.
These growth patterns do not seem to be closely tied to general economic
cycles.
Modernization and Consumer Products sales display significant seasonality. The
U.S. market, which is the largest market for Modernization and Consumer
Products, is driven by the beginning of leagues in the fall of each year.
Operators typically sign buying agreements, particularly for replacement
equipment, during the first four months of the year, after they receive winter
league revenue indications. Equipment is shipped and installed during the
summer months, when leagues are generally less active. Sales of modernization
equipment, such as automatic scoring and synthetic lane overlays, are less
predictable and fluctuate more than the replacement equipment because of the
extended life cycles of these major products, which range from four to ten
years.
International Operations
For the six months ended June 30, 1997, 26.1% of Bowling Centers operations
revenue was generated by international centers. Historically, the Company has
not engaged in any significant hedging activities.
For the six months ended June 30, 1997, 57.3% of Bowling Products sales were
made through international sales offices and distributors. To minimize credit
and international exchange risk, equipment is sold primarily using letters of
credit denominated in U.S. dollars. Letters of credit are usually received
before shipments leave U.S. ports. International sales offices sell some
products in local currency, but adjust pricing, to the extent that market
conditions permit, with changes in exchange rates. This policy enables the
Bowling Products operations generally to avoid
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<PAGE> 25
any material adverse effect from exchange rate fluctuations. Management
believes that this policy should continue to protect the Company from material
adverse consequences of exchange rate fluctuations, except in the event of
severe international exchange rate volatility.
Backlog: Recent NCP Sales
The total NCP backlog as of June 30, 1997 was 2,182 units which is a 51.1%
increase over the June 30, 1996 backlog of 1,444 units, and a 53.0% increase
over the December 31, 1996 backlog of 1,426 units. The increased backlog was
directly attributable to strong NCP orders generated throughout the world as a
result of an aggressive program to increase sales in established markets and
develop bowling in emerging markets. The backlog as of June 30, 1997 reflected
a significant number of orders from customers in China, Malaysia, North and
South America, Japan and Europe.
NCP sales for the first six months of 1997 totaled $62.8 million, a 67.5%
increase over the same period in 1996. The significant increase was
attributable to the market development and sales programs implemented in the
second half of 1996 and in 1997 which are designed to maximize NCP sales
activity in a variety of marketplaces of the world. While China is a large
market for NCP sales and backlog, other markets such as South America, India,
Poland, Russia, and the Middle East are also represented and being developed as
a result of the market development and sales programs discussed above.
On December 28, 1995, the State Council of China announced the reform and
adjustment of its policy towards foreign invested joint ventures. Joint
ventures importing capital equipment, including bowling equipment, are required
to pay customs duty and Value Added Tax ("VAT") on such equipment, though
certain grandfather rule exemptions will apply. For bowling equipment, the
current customs duty rate is 50%, while the VAT rate is 17%. Prior to the
change in policy, the joint ventures were exempt from customs duty and VAT on
most imported capital equipment, including bowling equipment. This concession
has been extended until December 31, 1997. Management believes that this
change in policy will not have a material effect on its results of operations.
Impact of Inflation
The Company has historically offset the impact of inflation through price
increases and expense reductions. Periods of high inflation could have an
adverse effect on the Company to the extent that increased borrowing costs for
floating rate debt may not be offset by increases in revenue.
Environmental Matters
The Company's operations are subject to federal, state, local and foreign
environmental laws and regulations that impose limitations on the discharge of,
and establish standards for the handling, generation, emission, release,
discharge, treatment, storage and disposal of, certain materials, substances
and wastes. To the Company's knowledge, its operations are in material
compliance with the terms of all applicable environmental laws and regulations.
The Company currently and from time to time is subject to environmental claims.
It is the opinion of management that the various asserted claims and litigation
in which the Company currently is involved are not likely to have a material
adverse effect on its financial position or results of operations. However, no
assurance can be given as to the ultimate outcome with respect to such claims
and litigation.
The Company cannot predict with any certainty whether future events, such as
changes in existing laws and regulations, may give rise to additional
environmental costs. Furthermore, actions by federal, state, local and foreign
governments concerning environmental matters could result in laws or
regulations that could increase the cost of producing the Company's products,
or providing its services, or otherwise adversely affect the demand for its
products or services.
25
<PAGE> 26
PART II
ITEM 1. LEGAL
The Company currently and from time to time is subject to claims and suits
arising in the ordinary course of its business, including environmental claims,
employment discrimination claims, workers' compensation claims, and minor
personal injury claims from customers of Bowling Centers. In certain such
actions, plaintiffs request punitive or other damages that may not be covered
by insurance. It is the opinion of management that the various asserted claims
and litigation in which the Company currently is involved will not have a
material adverse effect on its financial position or results of operations.
However, no assurance can be given as to the ultimate outcome with respect to
such claims and litigation.
On March 5, 1996, the defendant in an action entitled Northland Bowl and Sports
Center, Inc. and Recreation Associates, II v. Golden Giant, Inc., d/b/a Golden
Giant Building Systems, Court of Common Pleas, Centre County, Pa. (Index No.
96-75), asserted a third-party claim against AMF Bowling Inc. ("AMF Bowling")
and other parties. Defendant, Golden Giant, Inc. ("Golden Giant"), a
construction company, was originally named as the sole defendant by a bowling
center (not owned or operated by the Company) in connection with the collapse
of the center's roof in early 1994. Golden Giant named AMF Bowling as an
additional defendant, charging it with negligence and breach of implied
warranty for installing scoring monitors (four years before the roof collapsed)
on a portion of the building that allegedly could not adequately support the
additional weight of the equipment. The bowling center plaintiff claims total
damages in amounts exceeding $3.5 million and Golden Giant asserts that, if
plaintiff is entitled to any recovery, it should be in whole or part against
AMF Bowling. The matter was scheduled to go to trial during September 1997.
On March 25, 1997, an order was entered dismissing AMF Bowling from the
lawsuit, which continues against the other defendants. The plaintiff has
appealed the order dismissing AMF Bowling. No decision has been rendered by
the appeals court.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10.1 Amendment No. 2 to the Amended and Restated Credit
Agreement dated as of June 30, 1997.
10.2 Interest Rate Cap Agreement dated July 2, 1997.
27 Financial Data Schedule for the six months ended
June 30, 1997. (SEC filing only)
99 Second quarter, 1997, earnings release dated August
14, 1997. (SEC filing only)
(b) Reports on Form 8-K: None.
26
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly authorized this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMF Group Inc.
(Registrant)
/s/ Stephen E. Hare August 14, 1997
- --------------------------
Stephen E. Hare
Executive Vice President,
Chief Financial Officer
(Duly Authorized Officer)
/s/ Michael P. Bardaro August 14, 1997
- --------------------------
Michael P. Bardaro
Vice President, Secretary and
Corporate Controller
(Chief Accounting Officer)
27
<PAGE> 1
EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 30, 1997
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED CREDIT AGREEMENT among AMF
GROUP INC., a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders parties to the Amended and
Restated Credit Agreement referred to below (collectively, the "Lenders"),
GOLDMAN, SACHS & CO., as syndication agent (together with any successor
appointed pursuant to Article VII of the Amended and Restated Credit Agreement,
the "Syndication Agent"), CITIBANK, N.A., as administrative agent (together
with any successor appointed pursuant to Article VII of the Amended and
Restated Credit Agreement, the "Administrative Agent"), and CITICORP USA, INC.,
as collateral agent (together with any successor appointed .pursuant to Article
VII of the Amended and Restated Credit Agreement, the "Collateral Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Syndication Agent, the
Administrative Agent and the Collateral Agent have entered into an Amended and
Restated Credit Agreement dated as of December 20, 1996 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Amended and
Restated Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Amended and Restated
Credit Agreement.
(2) The Borrower has requested an increase in the Commitments by an
amount of $80,000,000 in order to add a second acquisition facility for
purposes of financing certain acquisitions and paying fees and expenses
incurred in connection therewith and in connection with this Amendment.
(3) The Required Lenders and the Acquisition. B Lenders (as defined
in the Second Amended and Restated Credit Agreement referred to below) are, on
the terms and conditions stated below, willing to grant the request of the
Borrower and the Borrower, the Required Lenders and the Acquisition B Lenders
have agreed to further amend and restate the Amended and Restated Credit
Agreement as hereinafter set forth.
<PAGE> 2
2
SECTION 1. Amendment to Amended and Restated Credit Agreement. The
Amended and Restated Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2,
hereby amended and restated in full as set forth on Exhibit A hereto (the
"Second Amended and Restated Credit Agreement").
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the following
conditions precedent have been satisfied:
(a) the conditions precedent to the effectiveness of the
Acquisition B Commitments (as defined in the Second Amended and
Restated Credit Agreement) contained in Section 3.05 of the Second
Amended and Restated Credit Agreement have been satisfied;
(b) on or before 5:00 p.m. (New York City time) on June 30, 1997
or such later date as the Administrative Agent and the Borrower shall
agree (but in any event, on or before July 31, 1997) (the "Closing
Date"), the Administrative Agent shall have received counterparts of
(i) this Amendment executed by the Borrower, the Required Lenders and
the Acquisition B Lenders or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender has executed
this Amendment and (ii) the Consent attached hereto executed by each
Loan Party (other than the Borrower); and
(c) (i) the amendment fee of 5 basis points shall have been
received by the Administrative Agent for the account of the Lenders
executing this Amendment on or prior to the Closing Date, (ii) the
underwriting fee set forth in the fee letter dated as of May 21, 1997
between the Borrower and the Agents shall have been received by the
Administrative Agent for the account of the Acquisition B Lenders on or
prior to the Closing Date, and (iii) the fees and expenses of counsel
to the Agents previously accrued and invoiced has been received by
counsel to the Agents on or prior to the Closing Date.
The effectiveness of Section I of this Amendment is conditioned upon the
accuracy of the factual matters described herein. This Amendment is subject to
the provisions of Section 8.01 of the Amended and Restated Credit Agreement.
SECTION 3. Reference to and Effect on the Credit Agreement and the
other Loan Documents. (a) On and after the effectiveness of this Amendment,
each reference in the Amended and Restated Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Amended and Restated Credit Agreement, and each
<PAGE> 3
3
reference in the Notes and each of the other Loan Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Amended and Restated Credit Agreement, shall mean and be a reference to the
Amended and Restated Credit Agreement, as amended and restated by this
Amendment.
(b) The Amended and Restated Credit Agreement, the Notes and each
of the other Loan Documents, as specifically amended by this Amendment, are and
shall continue to be in FULL force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the
Collateral Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Loan Parties under the
Loan Documents, in each case as amended by this Amendment and the Second
Mortgage Amendments (as defined in the Second Amended and Restated Credit
Agreement).
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 4. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agents in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the Second Amended and Restated Credit Agreement and the other
instruments and documents to be delivered hereunder and thereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agents)
in accordance with the terms of Section 8.04 of the Amended and Restated Credit
Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
<PAGE> 4
4
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMF GROUP INC.
By /s/ STEPHEN E. HARE
-------------------------------------------
Title: CFO
GOLDMAN, SACHS & CO.,
as existing Syndication Agent
By /s/ GOLDMAN, SACHS & CO.
-------------------------------------------
Title:
GOLDMAN SACHS CREDIT
PARTNERS L.P.,
as new Syndication Agent
By /s/ STEPHEN B. KING
-------------------------------------------
Stephen B. King
Title: Authorized Signatory
CITIBANK, N.A.,
as Administrative Agent
By /s/ CHARLES FOSTER
-------------------------------------------
Title: Vice President &
Attorney-in-fact
<PAGE> 5
5
CITICORP USA, INC.,
as Collateral Agent
By /s/ CHARLES FOSTER
-------------------------------------------
Title: Vice President &
Attorney-in-fact
<PAGE> 6
6
LENDERS
GOLDMAN SACHS CREDIT
PARTNERS L.P.
By /s/ STEPHEN B. KING
-------------------------------------------
Stephen B. King
Title: Authorized Signatory
CITICORP USA, INC.
By /s/ CHARLES FOSTER
-------------------------------------------
Title: Vice President &
Attorney-in-fact
ABN AMBRO BANK N.V., NEW YORK
BRANCH
By [SIG]
-------------------------------------------
Title: Group Vice President
By /s/ THOMAS T. ROGERS
-------------------------------------------
ABN AMRO BANK
Thomas T. Rogers
Title: Assistant Vice President
AERIES FINANCE LTD.
By /s/ ANDREW WIGNALL
-------------------------------------------
Andrew Ian Wignall
Title: Director
<PAGE> 7
7
ALLSTATE LIFE INSURANCE COMPANY
By [SIG] By [SIG]
---------------------------------- -------------------------------------------
Title: Title:
AMARA - 2 FINANCE LTD.
By /s/ ANDREW WIGNALL
-------------------------------------------
Andrew Ian Wignall
Title: Director
AMSOUTH BANK OF ALABAMA
By /s/ L. ROBERT CLARK
-------------------------------------------
Title: Commercial Banking Officer
BANK OF AMERICA ILLINOIS
By /s/ FRANCIS J. GRIFFIN
-------------------------------------------
Francis J. Griffin
Title: Attorney-In-Fact
BANK OF HAWAII
By /s/ JOSEPH T. DONALSON
-------------------------------------------
Joseph T. Donalson
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ J.R. TRIMBLE
-------------------------------------------
J.R. Trimble
Title: Senior Relationship Manager
<PAGE> 8
8
BANK OF SCOTLAND
By /s/ ANNIE CHIN TAT
-------------------------------------------
Annie Chin Tat
Title: Vice President
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By
-------------------------------------------
Title:
By /s/ FREDERICK KAMMLER
-------------------------------------------
Frederick K. Kammler
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ DAVID BOUHL
-------------------------------------------
David Bouhl, F.V.P.
Title: Head Of Corporate Banking
Chicago
CAPTIVA II FINANCE LTD.
By /s/ JOHN H. CULLIMANE
-------------------------------------------
John H. Cullimane
Title: Director
CIBC INC.
By [SIG]
-------------------------------------------
Title: Director
<PAGE> 9
9
COMERICA BANK
By /s/ TAMARA J. GURNE
-------------------------------------------
Tamara J. Gurne
Title: Account Officer
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By /s/ BRIAN O'LEARY
-------------------------------------------
Title: Vice President
By /s/ SEAN MOUNIER
-------------------------------------------
Title: First Vice President
CORESTATES BANK N.A.
By [SIG]
-------------------------------------------
Title: Assistant Vice President
CREDITANSTALT BANKVEREIN
By /s/ GREGORY T. MATHIS
-------------------------------------------
Title:
By /s/ CLIFFORD L. WELLS
-------------------------------------------
Clifford L. Wells
Title: Vice President
<PAGE> 10
10
CRESTAR BANK
By [SIG]
-------------------------------------------
Title: Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN
BRANCHES
By /s/ RICHARD W. CONROY
-------------------------------------------
Title: Vice President
By /s/ BEN NARZAK
-------------------------------------------
Title: Vice President
BANKBOSTON, N.A.
By [SIG]
-------------------------------------------
Title: Division Executive
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc., its
agent/manager
By [SIG]
-------------------------------------------
Title: V.P
<PAGE> 11
11
GENERAL ELECTRIC CAPITAL
CORPORATION
By [SIG]
-------------------------------------------
Title: CFO-Capital Marriott
HELLER FINANCIAL, INC.
By [SIG]
-------------------------------------------
Title: SVP
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ JAMES P. WELCH
-------------------------------------------
Title: Vice President
KEYPORT LIFE INSURANCE
COMPANY
By: Chancellor LGT Senior Secured
Management, Inc. as Portfolio
Advisor
By /s/ GREGORY L. SMITH
-------------------------------------------
Gregory L. Smith
Title: Vice President
<PAGE> 12
12
MARINE MIDLAND BANK
By /s/ J.B. LYONS
-------------------------------------------
Title: SVP
MEDICAL LIABILITY MUTUAL
INSURANCE CO.
By: Chancellor LGT Senior Secured
Management, Inc. as Investment
Manager
By /s/ GREGORY L. SMITH
-------------------------------------------
Title: Gregory L. Smith
Vice President
MELLON BANK, N.A.
By /s/ MARTIN J. RANDAL
-------------------------------------------
Martin J. Randal
Title: Banking Officer
MERITA BANK LTD, NEW YORK
BRANCH
By /s/ FRANK MAFFEI
-------------------------------------------
Frank Maffei
Title: Vice President
By /s/ G.E. CHELIUS
-------------------------------------------
G.E. Chelius
Title: SVP
<PAGE> 13
13
MERRILL LYNCH PRIME RATE
PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By /s/ R. DOUGLAS HENDERSON
-------------------------------------------
R. Douglas Henderson
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By /s/ R. DOUGLAS HENDERSON
-------------------------------------------
Title: R. Douglas Henderson
Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY
By [SIG]
-------------------------------------------
Title: Assistant Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By [SIG]
-------------------------------------------
Title: Senior Vice President
MORGAN GUARANTY TRUST CO.
By [SIG]
-------------------------------------------
Title: Assistant Vice President
<PAGE> 14
14
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO
(a unit of Chase Manhattan Bank)
By /s/ ANDREW D. GORDON
-------------------------------------------
Andrew D. Gordon
Title: Managing Director
PILGRIM AMERICA PRIME RATE
TRUST
By /s/ MICHAEL J. BACEVICH
-------------------------------------------
Michael J. Bacevich
Title: Vice President
PNC BANK, NATIONAL
ASSOCIATION
By [SIG]
-------------------------------------------
Title: V. P.
PPM AMERICA, INC.,
as attorney in fact, on behalf of
JACKSON NATIONAL LIFE
INSURANCE COMPANY
By [SIG]
-------------------------------------------
Title: Managing Director
<PAGE> 15
15
PROTECTIVE LIFE INSURANCE COMPANY
By /s/ JAMES DONDERO
-------------------------------------------
James Dondero
Title: Authorized Signator
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.
By: Chancellor LGT Senior Secured
Management, Inc. as Portfolio Advisor
By /s/ GREGORY L. SMITH
-------------------------------------------
Gregory L. Smith
Title: Vice President
ROYALTON
By its Investment Advisor
PACIFIC INV. MGT. CO
By /s/ RAYMOND KENNEDY
-------------------------------------------
Raymond Kennedy
Title: Vice President
THE SAKURA BANK, LIMITED, NEW
YORK BRANCH
By /s/ YOSHIKAZU NAGURA
-------------------------------------------
Yoshikazu Nagura
Title: Vice President
<PAGE> 16
16
SENIOR DEBT PORTFOLIO
By Boston Management and Research
as Investment Advisor
By [SIG]
-------------------------------------------
Title: Vice President
SIGNET BANK
By /s/ J. CHARLES LINK
-------------------------------------------
Title: Sr. Vice Pres.
SOCIETE GENERALE
By /s/ JOHN M. STADE
-------------------------------------------
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By [SIG]
-------------------------------------------
Title: VP
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ JOHN C. KISSINGER
-------------------------------------------
John C. Kissinger
Title: Joint General Manager
<PAGE> 17
17
THE TRAVELERS INSURANCE
COMPANY
By /s/ TERESA M. TORREY
-------------------------------------------
Teresa M. Torrey
Title: Second Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ DOUGLAS A. RICH
-------------------------------------------
Douglas A. Rich
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ JEFFREY W. MAILLET
-------------------------------------------
Jeffrey W. Maillet
Title: Senior Vice President & Director
THE YASUDA TRUST AND BANKING
CO., LIMITED
By /s/ PRICE I. CHENAULT
-------------------------------------------
Price I. Chenault
Title: First Vice President
<PAGE> 18
18
ML CBO IV (CAYMAN) LTD.
By: Protective Asset Management,
L.L.C., as Collateral Manager
By: /s/ JAMES DONDERO
-------------------------------------------
James Dondero CPA, CFA
Title: President
Protective Asset Management, L.L.C.
<PAGE> 19
CONSENT
Dated as of June 30, 1997
Each of the undersigned, as a Loan Party to certain of the Loan
Documents (as defined in the Amended and Restated Credit Agreement referred to
in the foregoing Amendment), hereby consents to such Amendment and hereby
confirms and agrees that (a) notwithstanding the effectiveness of such
Amendment, each Loan Document to which it is a party is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of such Amendment, each
reference in such Loan Document to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Amended
and Restated Credit Agreement, as amended and restated by such Amendment, and
(b) the Collateral Documents to which such Loan Party is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all of the Secured Obligations (in each case, as defined therein).
AMF BCO-CHINA, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BCO-FRANCE ONE, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
<PAGE> 20
2
AMF BCO-FRANCE TWO, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BCO-UK ONE, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BCO-UK TWO, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BEVERAGE COMPANY OF
OREGON, INC.
By: /s/ [sig]
-------------------------
Title: sec
AMF BEVERAGE COMPANY OF W.
VA., INC.
By: /s/ [sig]
-------------------------
Title: sec
<PAGE> 21
3
AMF BOWLING, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS, INC.
By: /s/ [sig]
-------------------------
Title: sec
AMF BOWLING CENTERS CHINA,
INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS
INTERNATIONAL INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS (AUST)
INTERNATIONAL INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
<PAGE> 22
4
AMF BOWLING CENTERS (CANADA)
INTERNATIONAL, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS (HONG
KONG) INTERNATIONAL INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS
HOLDINGS INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS SPAIN INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING CENTERS
SWITZERLAND INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
<PAGE> 23
5
AMF BOWLING HOLDINGS INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF BOWLING MEXICO HOLDING,
INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF GROUP HOLDINGS INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
AMF WORLDWIDE BOWLING
CENTERS HOLDINGS INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
BOLICHES AMF, INC.
By: /s/ STEPHEN E. HARE
-------------------------
Title: CFO
<PAGE> 24
6
BUSH RIVER CORPORATION
By: /s/ [sig]
-------------------------
Title: sec
KING LOUIE LENEXA, INC.
By: /s/ [sig]
-------------------------
Title: sec
<PAGE> 25
Exhibit A to
Amendment No. 2
$860,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS of June 30, 1997
Among
AMF GROUP INC.
as Borrower
and
THE INITIAL LENDERS AND INITIAL ISSUING BANKS
and
GOLDMAN SACHS CREDIT PARTNERS L.P.
and
CITICORP SECURITIES, INC.
as Arrangers
and
GOLDMAN SACHS CREDIT PARTNERS L.P.
as Syndication Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE> 26
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
1.01. Certain Defined Terms..................................................... 3
1.02. Computation of Time Periods .............................................. 39
1.03. Accounting Terms.......................................................... 39
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances.............................................................. 39
2.02. Making the Advances....................................................... 42
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit........ 44
2.04. Repayment of Advances..................................................... 46
2.05. Termination or Reduction of the Commitments............................... 51
2.06. Prepayments............................................................... 53
2.07. Interest.................................................................. 57
2.08. Fees...................................................................... 58
2.09. Conversion of Advances.................................................... 59
2.10. Increased Costs, Etc...................................................... 59
2.11. Payments and Computations................................................. 61
2.12. Taxes..................................................................... 63
2.13. Sharing of Payments, Etc.................................................. 65
2.14. Use of Proceeds........................................................... 66
2.15. Defaulting Lenders........................................................ 66
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit....................... 69
3.02. Conditions Precedent to Each Borrowing and Issuance....................... 79
3.03. Determinations Under Section 3.01......................................... 80
3.04. Conditions Precedent to the Making of the New AXELs Series B
Advances.................................................................. 80
</TABLE>
<PAGE> 27
ii
<TABLE>
<CAPTION>
Section Page
<S> <C>
3.05. Conditions Precedent to the Effectiveness of Section 2.01(f).............. 83
3.06. Determinations Under Sections 3.04 and 3.05............................... 86
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower............................ 86
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants..................................................... 95
5.02. Negative Covenants........................................................ 105
5.03. Reporting Requirements.................................................... 116
5.04. Financial Covenants....................................................... 121
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default......................................................... 127
6.02. Actions in Respect of the Letters of Credit upon Default.................. 130
ARTICLE VII
THE AGENTS
7.01. Authorization and Action.................................................. 131
7.02. Agents' Reliance, Etc..................................................... 131
7.03. Citibank, Citicorp, Goldman and Affiliates................................ 132
7.04. Lender Party Credit Decision.............................................. 132
7.05. Indemnification........................................................... 132
7.06. Successor Agents.......................................................... 134
</TABLE>
ARTICLE VIII
MISCELLANEOUS
<PAGE> 28
iii
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
8.01. Amendments, Etc.......................................................... 135
8.02. Notices Etc.............................................................. 137
8.03. No Waiver; Remedies...................................................... 137
8.04. Costs and Expenses....................................................... 137
8.05. Right of Set-off......................................................... 139
8.06. Binding Effect........................................................... 140
8.07. Assignments and Participations........................................... 140
8.08. Execution in Counterparts................................................ 144
8.09. No Liability of the Issuing Banks........................................ 144
8.10. Confidentiality.......................................................... 144
8.11. Jurisdiction, Etc........................................................ 145
8.12. Release of Collateral.................................................... 145
8.13. Governing Law; Waiver of Jury Trial...................................... 146
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule III - Stockholders' Agreement
Schedule 3.01(e) - Surviving Debt
Schedule 3.01(p)(xx) - Local Counsel
Schedule 4.01(a) - Equity investors' Ownership of Parent
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(m) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(v) - Environmental Laws Disclosure
Schedule 4.01(w) - Environmental Disclosure
</TABLE>
<PAGE> 29
iv
<TABLE>
<S> <C>
Schedule 4.01(x) - Hazardous Materials Disclosure
Schedule 4.01(bb) - Open Years
Schedule 4.01(ff) - Acquisitions by AMF Bowling Centers
Schedule 4.01(ii) - Existing Debt
Schedule 4.01(kk) - Owned Real Property
Schedule 4.01(11) - Leased Real Property
Schedule 4.01(mm) - Investments
Schedule 4.01(nn) - Intellectual Property
Schedule 5.01(l) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(g) - Non-competition Agreements
Schedule 5.02(q) - Certain Capital Expenditures
EXHIBITS
Exhibit A-1 - Form of Term Loan Note
Exhibit A-2 - Form of AXELs Series A Note
Exhibit A-3 - Form of AXELs Series B Note
Exhibit A-4 - Form of Working Capital Note
Exhibit A-5 - Form of Acquisition Note
Exhibit A-6 - Form of Acquisition B Note
Exhibit B - Form of Notice of Borrowing
</TABLE>
<PAGE> 30
v
<TABLE>
<S> <C>
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Intellectual Property Security Agreement
Exhibit F - Form of Mortgage
Exhibit G - Form of Holdings Guaranty
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Solvency Opinion
Exhibit J - Form of Solvency Certificate
Exhibit K - Form of Opinion of Counsel to the Loan Parties
Exhibit L - Form of Opinion of Intellectual Property Counsel
Exhibit M - Form of Mortgage Amendment
Exhibit N - Form of Opinion of Counsel to the Loan Parties regarding
Amendment No. 3 to the Original Credit Agreement
Exhibit O - Form of Opinion of Daniel McCormack, General Counsel for the
Borrower regarding Amendment No. 3 to the Original Credit
Agreement
Exhibit P - Form of Second Mortgage Amendment
Exhibit Q - Form of Opinion of Counsel to the Loan Parties regarding
Amendment No. 2 to the Existing Credit Agreement
</TABLE>
<PAGE> 31
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 30,
1997 among AMF GROUP INC., a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders") and the banks
listed on the signature pages hereof as the Initial-Issuing Banks (the "Initial
Issuing Banks"), GOLDMAN SACHS CREDIT PARTNERS L.P. ("Goldman") and CITICORP
SECURITIES, INC., as arrangers (the "Arrangers"), GOLDMAN, as syndication agent
(together with any successor appointed pursuant to Article VII, the
"Syndication Agent"), CITIBANK, N.A. ("Citibank"), as administrative agent
(together with any successor appointed pursuant to Article VII, the
"Administrative Agent") for the Lender Parties (as hereinafter defined) and
CITICORP USA, INC. ("Citicorp") as collateral agent (together with any
successor appointed pursuant to Article VII, the "Collateral Agent", and
together with the Syndication Agent and the Administrative Agent, the
"Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower has previously entered into a Credit Agreement
dated as of May 1, 1996 (as amended, supplemented or otherwise modified through
but not including the Second Closing Date, the "Original Credit Agreement")
with certain Lender Parties and the Agents party thereto.
(2) The Borrower, certain Lender Parties and the Agents amended and
restated the Original Credit Agreement and entered into an Amended and Restated
Credit Agreement dated as of December 20, 1996 (as amended, supplemented or
otherwise modified through but not including the date hereof, the "Existing
Credit Agreement").
(3) The Borrower is a direct, wholly owned Subsidiary (as
hereinafter defined) of AMF Group Holdings Inc., a Delaware corporation
("Holdings"), which is a direct, wholly owned Subsidiary of AMF Holdings Inc.,
a Delaware corporation ("Parent").
(4) Parent and Holdings were organized by GS Capital Partners II,
L.P., GS Capital Partners II Offshore, L.P. and Goldman, Sachs & Co.
Verwaltungs GmbH (collectively, together with The Goldman Sachs Group L.P.,
Stone Street Fund 1995 L.P., Stone Street Fund 1996 L.P., Bridge Street Fund
1995 L.P. and Bridge Street Fund 1996 L.P. and in each case any successor
funds, the "Goldman Investors") to acquire control, together with the other
Equity Investors (as hereinafter defined), of AMF Bowling, Inc., a Virginia
corporation, AMF Bowling Centers, Inc., a Virginia corporation, AMF Worldwide
Bowling Centers Group and their respective Subsidiaries (collectively, the
"Company").
<PAGE> 32
2
(5) Pursuant to the Stock Purchase Agreement dated February 16,
1996 (as amended, supplemented or otherwise modified in accordance with its
terms, to the extent permitted in accordance with the Loan Documents (as
hereinafter defined), the "Purchase Agreement") between Holdings and the
Sellers (as defined therein), Holdings proposed to acquire all of the
outstanding common stock of the Company (the "Stock Acquisition "), in the case
of AMF Bowling and AMF Bowling Centers (each as hereinafter defined), through
two intermediate holding company Subsidiaries (the "Intermediate Companies"),
and to acquire from the Retained Entities and WBB (each as defined in the
Purchase Agreement) certain assets (the "Asset Acquisition", and together with
the Stock Acquisition, the "Acquisition"). Immediately upon the consummation of
the Acquisition, one of the Intermediate Companies was merged into AMF Bowling
and the other Intermediate Company was merged into AMF Bowling Centers.
(6) The Borrower requested that, immediately upon the consummation
of the Acquisition, the Lender Parties lend to the Borrower up to $715,000,000
to pay to the Sellers the cash consideration for the Acquisition, to pay
transaction fees and expenses and to refinance certain Existing Debt (as
hereinafter defined) of the Company and that, from time to time, the Lender
Parties lend to the Borrower and issue Letters of Credit for the account of the
Borrower to finance certain acquisitions on the terms and conditions set forth
herein and to provide working capital for the Borrower and its Subsidiaries.
The Lender Parties agreed, pursuant to the Original Credit Agreement, to lend
such amounts on the terms and conditions set forth therein.
(7) The Borrower requested that, immediately upon the amendment and
restatement of the Original Credit Agreement by means of the Existing Credit
Agreement, the New AXELs Series B Lenders (as hereinafter defined) lend to the
Borrower up to $65,000,000 to prepay a portion of the Acquisition Advances then
outstanding and to pay certain fees and expenses incurred in connection
therewith. The New AXELs Series B Lenders agreed pursuant to the Existing
Credit Agreement to lend such amount on the terms and conditions set forth
therein.
(8) The Borrower has requested that, immediately upon the amendment
and restatement of the Existing Credit Agreement by means of this Agreement,
the Acquisition B Lenders (as hereinafter defined) agree to lend to the
Borrower up to $80,000,000 from time to time to finance new acquisitions, to
refinance construction costs associated with new bowling centers after the
construction thereof and to pay certain fees and expenses incurred in
connection therewith. The Acquisition B Lenders have indicated their
willingness to agree to lend such amount on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
<PAGE> 33
3
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" has the meaning specified in the Preliminary
Statements.
"Acquisition Advance" has the meaning specified in Section 2.01(e).
"Acquisition Borrowing" means a borrowing consisting of simultaneous
Acquisition Advances of the same Type made by the Acquisition Lenders.
"Acquisition Commitment" means, with respect to any Acquisition
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Acquisition Commitment" or, if such Lender
has entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Acquisition Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"Acquisition Facility" means, at any time, the aggregate amount of
the Acquisition Lenders' Acquisition Commitments at such time.
"Acquisition Lender" means any Lender that has an Acquisition
Commitment.
"Acquisition Note" means a promissory note of the Borrower payable
to the order of any Acquisition Lender, in substantially the form of Exhibit
A-5 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Acquisition Advances made by such Lender.
"Acquisition B Advance" has the meaning specified in Section
2.01(f).
"Acquisition B Borrowing" means a borrowing consisting of
simultaneous Acquisition B Advances of the same Type made by the Acquisition B
Lenders.
"Acquisition B Commitment" means, with respect to any Acquisition B
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto
<PAGE> 34
4
under the caption "Acquisition B Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(d) as
such Lender's "Acquisition B Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"Acquisition B Facility" means, at any time, the aggregate amount
of the Acquisition B Lenders' Acquisition B Commitments at such time.
"Acquisition B Lender" means any Lender that has an Acquisition B
Commitment.
"Acguisition B Note" means a promissory note of the Borrower
payable to the order of any Acquisition B Lender, in substantially the form of
Exhibit A-6 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Acquisition B Advances made by such Lender.
"Adjusted EBITDA" means, at any time, in the case of any New
Center, the product of (a) the Average EBITDA Margin calculated as of the end
of the fiscal quarter immediately preceding the fiscal quarter in which the
time of the acquisition or construction of such New Center (within the meaning
of the definition of "New Center" contained in this Section 1.01) occurs and
(b) the Specified Revenues of such New Center.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at
its office at 399 Park Avenue, New York, New York 10043, Account No. 3885-8061,
Attention: Alexandra Lozovsky.
"Advance" means a Term Loan Advance, an AXELs Series A Advance, an
AXELs Series B Advance, a Working Capital Advance, an Acquisition Advance, an
Acquisition B Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to
<PAGE> 35
5
vote 5% or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to
this Agreement.
"AMF Bowling" means AMF Bowling, Inc., a Virginia corporation and
an indirect wholly owned Subsidiary of the Borrower.
"AMF Bowling Centers" means AMF Bowling Centers, Inc., a Virginia
corporation and an indirect wholly owned Subsidiary of the Borrower.
"AMF Worldwide" means AMF Worldwide Bowling Centers Holdings Inc.,
a Delaware corporation and an indirect wholly owned Subsidiary of the Borrower.
"Amendment Documents" means (a) Amendment No. 3, (b) the AXELs
Series B Notes payable to the New AXELs Series B Lenders and (c) the Mortgage
Amendments, in each case as amended, supplemented or otherwise modified from
time to time.
"Amendment No. 3" means Amendment No. 3 to the Original Credit
Agreement dated as of December 20, 1996 among the Borrower, the Lenders parties
thereto, and the Agents, and the Consent thereto dated as of December 20, 1996
by the Loan Parties (other than the Borrower).
"Amendment No. 2" means Amendment No. 2 to the Existing Credit
Agreement dated as of June _, 1997 among the Borrower, the Lenders parties
thereto, and the Agents, and the Consent thereto dated as of June _, 1997 by
the Loan Parties (other than the Borrower).
"Amortization Amount A" means, at any time of determination, an
amount equal to (a) until the Availability Termination Date, 50% of the amount
by which the aggregate principal amount of the Acquisition Advances outstanding
at such time exceeds $75,000,000 but in any event not less than zero, and (b)
thereafter, 50% of the amount by which the aggregate principal amount of the
Acquisition Advances outstanding on the Availability Termination Date (after
giving effect to any Acquisition Advances made on such date) exceeds
$75,000,000 but in any event not less than zero.
"Amortization Amount B" means, at any time of determination, an
amount equal to (a) until the Availability Termination Date, the lesser of (i)
$18,750,000 and (ii) 25% of the aggregate principal amount of the Acquisition
Advances outstanding at such time, and (b) thereafter, the lesser of (i)
$18,750,000 and (ii) 25% of the
<PAGE> 36
6
aggregate principal amount of the Acquisition Advances outstanding on the
Availability Termination Date.
"Amortization Amount C" means, at any time of determination, an
amount equal to (a) until the Availability Termination Date, 50% of the amount
by which the aggregate principal amount of the Acquisition B Advances
outstanding at such time exceeds $40,000,000 but in any event not less than
zero, and (b) thereafter, 50% of the amount by which the aggregate principal
amount of the Acquisition B Advances outstanding on the Availability
Termination Date (after giving effect to any Acquisition B Advances made on
such date) exceeds $40,000,000 but in any event not less than zero.
"Amortization Amount D" means, at any time of determination, an
amount equal to (a) until the Availability Termination Date, the lesser of (i)
$10,000,000 and (ii) 25% of the aggregate principal amount of the Acquisition B
Advances outstanding at such time, and (b) thereafter, the lesser of (i)
$10,000,000 and (ii) 25% of the aggregate principal amount of the Acquisition B
Advances outstanding on the Availability Termination Date.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means (a) 1.875% per annum for Base Rate
Advances and 2.875% per annum for Eurodollar Rate Advances outstanding under
the AXELs Series A Facility and 2.125% per annum for Base Rate Advances and
3.125% per annum for Eurodollar Rate Advances outstanding under the AXELs
Series B Facility, and (b) (i) from the First Closing Date until the one-year
anniversary of the First Closing Date, 1.50% per annum for Base Rate Advances
and 2.50% per annum for Eurodollar Rate Advances outstanding under the Term
Loan Facility, the Working Capital Facility, the Acquisition Facility or the
Acquisition B Facility, as the case may be, and (ii) thereafter, a percentage
per annum determined by reference to the Total Debt/EBITDA Ratio as set forth
below:
<PAGE> 37
7
<TABLE>
<CAPTION>
BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
<S> <C> <C>
Level I
- -------
less than 3.5:1 0.00% 1.00%
Level II
- --------
3.5:1 or greater, 0.50% 1.50%
but less than 4.25:1
Level III
- ---------
4.25:1 or greater, 1.00% 2.00%
but less than 4.75:1
Level IV
- --------
4.75:1 or greater, 1.25% 2.25%
but less than 5.25:1
Level V
- -------
5.25:1 or greater 1.50% 2.50%
</TABLE>
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the ratio in effect from time to time and the Applicable Margin
for each Eurodollar Rate Advance shall be determined by reference to the ratio
in effect on the first day of each Interest Period for such Advance; provided,
however, that (A) no change in the Applicable Margin shall be effective until
three Business Days after the date on which the Administrative Agent receives
the relevant Financial Statements and a certificate of a Designated Financial
Officer demonstrating such ratio, and (B) the Applicable Margin shall be at
Level V for so long as the Borrower has not submitted to the Administrative
Agent the information described in clause (A) of this proviso as and when
required under Section 5.03(b) or (c), as the case may be.
"Applicable Percentage" means (a) from the First Closing Date until
the one-year anniversary of the First Closing Date, 0.5% per annum, and (b)
thereafter, 0.5% per annum, or, if the Total Debt/EBITDA Ratio for the
immediately preceding 12 month period reflected in the relevant Financial
Statements shall be less than 4.00:1 and the Administrative Agent shall have
received a certificate of a Designated Financial Officer demonstrating such
ratio, 0.375% per annum.
<PAGE> 38
8
"Appropriate Lender" means, at any time, with respect to (a) any of
the Term Loan Facility, AXELs Series A Facility, Working Capital Facility, the
Acquisition Facility or the Acquisition B Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) the AXELs Series B
Facility, (i) on and prior to the making of the New AXELs Series B Advances, an
Existing AXELs Series B Lender or a New AXELs Series B Lender, as the context
may require, and (ii) thereafter, an AXELs Series B Lender and (c) the Letter
of Credit Facility, (i) any Issuing Bank and (ii) if the other Working Capital
Lenders have made Letter of Credit Advances pursuant to Section 2.03(c) that
are outstanding at such time, each such other Working Capital Lender.
"Arrangers" has the meaning specified in the recital of parties to
this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.07 and in substantially the
form of Exhibit C hereto.
" Availability Termination Date" means, with respect to the
Acquisition Facility and the Acquisition B Facility, the earlier of the
Termination Date and the date that is 3-1/2 years after the First Closing Date.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Average EBITDA Margin" means, at any time of determination, an
amount equal to (a) the sum of Consolidated EBITDA of AMF Bowling Centers and
its Subsidiaries and Consolidated EBITDA of AMF Worldwide and its Subsidiaries
divided by (b) the sum of Consolidated revenues of AMF Bowling Centers and its
Subsidiaries and Consolidated revenues of AMF Worldwide and its Subsidiaries,
in each case for the 12-month period reflected in the most recent Financial
Statements.
"AXELs Series A Advance" has the meaning specified in Section
2.01(b).
"AXELs Series A Borrowing" means a borrowing consisting of
simultaneous AXEL Series A Advances of the same Type made by the AXELs Series A
Lenders.
"AXELs Series A Commitment" means, with respect to any AXELs Series
A Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "AXELs Series A Commitment' or, if such
Lender has entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as
<PAGE> 39
9
such Lender's "AXELs Series A Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"AXELs Series A Facility" means, at any time, the aggregate amount
of the AXELs Series A Lenders' AXELs Series A Commitments at such time.
"AXELs Series A Lender" means any Lender that has an AXELs Series A
Commitment.
"AXELs Series A Note" means a promissory note of the Borrower
payable to the order of any AXELs Series A Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such lender
resulting from the AXELs Series A Advance made by such Lender.
AXELs Series B Advance" means any Existing AXELs Series B Advance
or any New AXELs Series B Advance.
"AXELs Series B Borrowing" means a borrowing consisting of
simultaneous AXELs Series B Advances of the same Type made by the AXELs Series
B Lenders.
"AXELs Series B Commitment" means an Existing AXELs Series B
Commitment or a New AXELs Series B Commitment.
"AXELs Series B Facility" means, at any time, the aggregate amount
of the AXELs Series B Lenders' AXELs Series B Commitments at such time.
"AXELS SERIES B Lender" means any Existing AXELs Series B Lender or
any New AXELs Series B Lender.
"AXELs Series B Note" means a promissory note of the Borrower
payable to the order of any AXELs Series B Lender, in substantially the form of
Exhibit A-3 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the AXELs Series B Advance made by such Lender.
"Bank Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower and
any Hedge Bank.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
<PAGE> 40
10
(b)the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1 % per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by (B)
a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of
or including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Blocked Accounts" has the meaning specified in the Security
Agreement.
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower's Account" means the account of the Borrower maintained
by the Borrower with The Chase Manhattan Bank, N.A. at its office at One Chase
Plaza, New York, New York 10081, Account No. 001-71281-9-01 or such other
account of the Borrower maintained by the Borrower in the United States as the
Borrower shall designate in writing to the Administrative Agent.
<PAGE> 41
11
"Borrowing" means a Term Loan Borrowing, an AXELs Series A
Borrowing, an AXELs Series B Borrowing, a Working Capital Borrowing, an
Acquisition Borrowing or an Acquisition B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings in U.S.
dollar deposits are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the
sum of (a) all expenditures made, directly or indirectly, by such Person or any
of its Subsidiaries during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions therefor or
additions thereto, that have been or should be, in accordance with GAAP,
reflected as additions to property, plant or equipment on a Consolidated
balance sheet of such Person or have a useful life of more than one year plus
(b) the aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures; provided, however, that the following shall in any event be
excluded from the definition of Capital Expenditures: any such expenditures
made with, or subsequently reimbursed out of, the proceeds of insurance,
condemnation awards (or payments in lieu thereof), indemnity payments or
payments in respect of judgments or settlements received from third parties for
purposes of replacing or repairing the assets in respect of which such
proceeds, awards or payments were received, so long as such expenditures are
commenced within 3 months of the later of the occurrence of the damage to or
loss of the assets being replaced or repaired and the receipt of such proceeds,
awards or payments in respect thereof; provided further, however, that
notwithstanding anything contained herein, Capital Expenditures shall not
include any Investments.
"Capitalized Leases" means all leases that have been or should be,
in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the Security
Agreement.
"Cash Equivalents" means any of the following, to the extent owned
by the Borrower or any of its Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a maturity of not
greater than 90 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in
<PAGE> 42
12
clause (c), is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion, (c)
commercial paper in an aggregate amount of no more than $10,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws of
any State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Ratings Group or (d) Investments in
money market funds that invest primarily in Cash Equivalents of the types
described in clauses (a), (b) and (c) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence of any of the following:
(a) at any time prior to an IPO, the Goldman Investors shall at any time for
any reason cease to own beneficially Voting Stock of Parent representing 51 %
or more of the combined voting power of all Voting Stock of Parent; (b) at any
time after an IPO, the Goldman Investors shall at any time for any reason cease
to own beneficially Voting Stock of Parent representing 35% or more of the
combined voting power of all Voting Stock of Parent; (c) at any time after an
IPO, any Person or two or more Persons acting in concert other than the Goldman
Investors shall have acquired at any time beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of
Parent (or other securities convertible into such Voting Stock) representing
more of the combined voting power of all Voting Stock of Parent than is
beneficially owned by the Goldman Investors at such time; (d) during any period
of up to 24 consecutive months, commencing after the First Closing Date,
individuals who at the beginning of such 24-month period were directors of
Parent shall cease for any reason to constitute a majority of the board of
directors of Parent (except to the extent that individuals who at the beginning
of such 24-month period were replaced by individuals (x) elected by a majority
of the remaining members of the board of directors of Parent or (y) nominated
for election by a majority of the remaining members of the board of directors
of Parent and thereafter elected as directors by the shareholders of Parent);
or (e) a "Change of Control" as defined in the Senior Subordinated Notes
Indenture or the Senior Subordinated Discount Notes Indenture.
"China Joint Venture" means AMF Garden Hotel Bowling Center
Company, a company organized under the laws of the People's Republic of China
by AMF Bowling Centers (China) Company, a Subsidiary of the Borrower, and the
Guangzhou Garden Hotel.
<PAGE> 43
13
"Citibank" has the meaning specified in the recital of parties to
this Agreement.
"Citicorp)" has the meaning specified in the recital of parties to
this Agreement.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Intellectual Property Security Agreement, the Mortgages and any other agreement
that creates or purports to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties.
"Commitment" means a Term Loan Commitment, an AXELs Series A
Commitment, an AXELs Series B Commitment, a Working Capital Commitment, an
Acquisition Commitment, an Acquisition B Commitment or a Letter of Credit
Commitment.
"Company" has the meaning specified in the Preliminary Statements.
"Confidential Information" means information that the Borrower
furnishes to any Agent or any Lender Party in a writing designated as
confidential but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by any
Agent or any Lender Party of its obligations hereunder or that is or becomes
available to such Agent or such Lender Party from a source other than the
Borrower that is not, to the best of such Agent's or such Lender Party's
knowledge, acting in violation of a confidentiality agreement with the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion", "Convert" and "Converted" each refer to a conversion
of Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a
<PAGE> 44
14
business the same as or similar to that of such Person, after deducting
adequate reserves in each case in which a reserve is proper in accordance with
GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one year after
the date of determination (excluding any Debt renewable or extendible, at the
option of such Person, to a date more than one year from such date or arising
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date),
(b) all amounts of Funded Debt of such Person required to be paid or prepaid
within one year after such date and (c) all other items (including taxes
accrued as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of such
Person for the deferred purchase price of property or services (other than
trade payables not overdue by more than 60 days incurred in the ordinary course
of such Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities, (g) all Obligations, contingent or otherwise,
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants, rights or options
to acquire such capital stock, valued, in the case of Redeemable Preferred
Stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements, (i) all Obligations of such Person in respect of
long-term non-competition agreements or arrangements, (j) all Debt of others
referred to in clauses (a) through (i) above or clause (k) below guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to assure
a creditor against loss, and (k) all Debt referred to in clauses (a) through
(j) above of another Person secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any Lien on
property
<PAGE> 45
15
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"Default" means any Event of Default or any event that would
constitute and Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party to
the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time which
has not been made by such Lender Party or by the Administrative Agent for the
account of such Lender Party pursuant to Section 2.02(d) as of such time. In
the event that a portion of a Defaulted Advance shall be deemed made pursuant
to Section 2.15(a), the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or any
other Lender Party hereunder or under any other Loan Document at or prior to
such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (a) any
Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a Letter of
Credit Advance made by such Issuing Bank, (b) the Administrative Agent pursuant
to Section 2.02(d) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender Party,
(c) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (d) any Agent or
any Issuing Bank pursuant to Section 7.05 to reimburse such Agent or such
Issuing Bank for such Lender Party's ratable share of any amount required to be
paid by the Lender Parties to such Agent or such Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.15(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid hereunder
or under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Designated Financial Officer" means any of the President or Vice
President-Finance of AMF Bowling or AMF Bowling Centers or the chief financial
officer of the Borrower.
<PAGE> 46
16
"Domestic Lending Office" to means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may be, or
such other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any Person, for any period, the sum, determined
on a Consolidated basis and without duplication, of (a) net income (or net
loss), (b) interest expense, (c) income tax expense, (d) depreciation expense,
(e) amortization expense, (f) the aggregate amount of a one-time bonus and
"phantom" stock payments (and payroll taxes associated therewith) made, in each
case, to employees, former employees, former owners and former consultants of
the Company and its Subsidiaries and the aggregate amount of professional and
similar fees incurred by the Sellers in connection with the Acquisition,
provided that, in each case, such amount shall have been funded by the Sellers
at or prior to the consummation of the Acquisition, (g) non-cash foreign
exchange losses, if any, (h) extraordinary or nonrecurring losses, if any,
included in determining such net income (or net loss), (i) other non-operating
expense, if any, included in determining such net income (or net loss), and (j)
Other Additions for such period, less the sum of (i) non-cash foreign exchange
gains, if any, (ii) extraordinary or nonrecurring gains, if any, included in
determining such net income (or net loss), and (iii) other non-operating
income, if any, included in determining such net income (or net loss), in each
case of such Person and its Subsidiaries, determined, except in the case of
clause (j) above, in accordance with GAAP for such period.
"EBITDA Adjustment Amount" means, at any time of determination, an
amount equal to 80% of the aggregate amount of the EBITDA of each bowling
center acquired or constructed by the Borrower or any of its Subsidiaries after
the First Closing Date and acquired or constructed at least 15 months prior to
such time of determination, as reflected in the certificate most recently
required to be furnished to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be, provided that for purposes hereof, the time of any
such acquisition shall be the date of consummation of such acquisition and the
time of any such construction shall be the date of the opening of such bowling
center for business.
"ECF Percentage" means 75% or, if the Total Debt/EBITDA Ratio for
the immediately preceding 12-month period reflected in the relevant Financial
Statements shall be less than 4.0:1 and the Administrative Agent shall have
received a certificate of a Designated Financial Officer demonstrating such
ratio, 50%.
"Eligible Assignee" means (a) with respect to any Facility (other
than the Letter of Credit Facility), (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United States,
or any State thereof,
<PAGE> 47
17
and having a combined capital and surplus of at least $500,000,000, in the case
of the Acquisition Facility, the Acquisition B Facility and the Working Capital
Facility, and at least $100,000,000, in the case of the Term Loan Facility, the
AXELs Series A Facility and the AXELs Series B Facility; (iv) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at least
$500,000,000, in the case of the Acquisition Facility, the Acquisition B
Facility and the Working Capital Facility, and at least $100,000,000, in the
case of the Term Loan Facility, the AXELs Series A Facility and the AXELs
Series B Facility; (v) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having a combined capital and surplus of at least $500,000,000, in the case of
the Acquisition Facility, the Acquisition B Facility and the Working Capital
Facility, and at least $100,000,000, in the case of the Term Loan Facility, the
AXELs Series A Facility and the AXELs Series B Facility, so long as such bank
is acting through a branch or agency located in the United States; (vi) the
central bank of any country that is a member of the OECD; (vii) a finance
company, insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having a combined capital and surplus of at least
$500,000,000, in the case of the Acquisition Facility, the Acquisition B
Facility and the Working Capital Facility, and at least $100,000,000, in the
case of the Term Loan Facility, the AXELs Series A Facility and the AXELs
Series B Facility; and (viii) any other Person approved by the Administrative
Agent and the Borrower, such approval not to be unreasonably withheld or
delayed, and (b) with respect to the Letter of Credit Facility, a Person that
is an Eligible Assignee under subclause (iii) or (v) of clause (a) of this
definition and is approved by the Administrative Agent and, so long as no
Default shall have occurred and be continuing, by the Borrower, such approval
not to be unreasonably withheld or delayed; provided, however, that neither any
Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement pursuant to any Environmental Law or any Environmental Permit or
relating to any Hazardous Material, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
<PAGE> 48
18
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree, judicial decision, or agency interpretation, policy or
guidance that has the force and effect of law, relating to pollution or
protection of the environment, public health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization from any governmental or regulatory
authority required under any Environmental Law.
"Equity Investors" means the Persons listed under the caption
"Equity Investors" on Schedule 4.01(a).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under common
control with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless
the 30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by, the administrator of any Plan of
a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
any Loan Party or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA: or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described in Section
4042 of
<PAGE> 49
19
ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrower and
the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the rate per annum at
which deposits in U.S. dollars are offered by the principal office of Citibank
in London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to Citibank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
(or, if Citibank shall not have such a Eurodollar Rate Advance, $1,000,000) and
for a period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (Or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any Fiscal Year (which, in the case
of the Fiscal Year ending December 31, 1996, shall mean the period from May 1,
1996 to
<PAGE> 50
20
December 31, 1996 for purposes of this definition), determined in accordance
with GAAP for the Borrower and its Subsidiaries on a Consolidated basis and
without duplication:
(a) Consolidated EBITDA of the Borrower and its Subsidiaries for
such Fiscal Year less (to the extent included in the calculation of
EBITDA) any Extraordinary Receipts received by the Borrower or any of
its Subsidiaries during such Fiscal Year less extraordinary or
non-recurring cash losses in such Fiscal Year plus extraordinary or
non-recurring cash gains in such Fiscal Year, less
(b) the sum of
(i) Consolidated cash interest expense payable by the Borrower
and its Subsidiaries in such Fiscal Year plus
(ii) the aggregate amount of Capital Expenditures made
pursuant to Section 5.02(q) by the Borrower and its Subsidiaries
during such Fiscal Year (but not exceeding the amount permitted to
be made in such Fiscal Year pursuant to Section 5.02(q)) plus
(iii) optional prepayments and scheduled payments of principal
of Debt of the Borrower and its Subsidiaries in such Fiscal Year
(including, without limitation, prepayments of the Working Capital
Facility to the extent that the Working Capital Facility is
permanently reduced) plus
(iv) cash taxes paid by the Borrower and its Subsidiaries in
such Fiscal Year plus
(c) if there was a net increase in Consolidated Current Liabilities
of the Borrower and its Subsidiaries during such Fiscal Year, the amount
of such net increase plus
(d) if there was a net decrease in Consolidated Current Assets
(excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such Fiscal Year, the amount of such net decrease
less
(e) if there was a net decrease in Consolidated Current Liabilities
of the Borrower and its Subsidiaries during such Fiscal Year, the amount
of such net decrease less
<PAGE> 51
21
(f) if there was a net increase in Consolidated Current Assets
(excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such Fiscal Year, the amount of such net
increase less
(g) (i) for any Fiscal Year ending on or prior to December 31,
1997, an amount equal to the product of (A) the Support Amount for
such Fiscal Year and (B) 0.803654, but not, under this clause
(g)(i), to exceed $14,063,946.68 in the aggregate from and after
the First Closing Date, and (ii) for any Fiscal Year ending
thereafter, zero.
"Excess Cash Flow Amount" means (a) for each of the first two
Fiscal Years ending after the First Closing Date, an amount equal to the
lesser of (i) the amount by which Excess Cash Flow for such Fiscal Year
exceeds $10,000,000 and (ii) an amount equal to the product of the ECF
Percentage and Excess Cash Flow for such Fiscal Year, (b) for the third
Fiscal Year ending after the First Closing Date, an amount equal to the
lesser of (i) the amount by which Excess Cash Flow for such Fiscal Year
exceeds $20,000,000 and (ii) an amount equal to the product of the ECF
Percentage and Excess Cash Flow for such Fiscal Year and (c) for each
Fiscal Year ending thereafter, an amount equal to the product of the ECF
Percentage and Excess Cash Flow for such Fiscal Year.
"Existing AXELs Series B Advance" has the meaning specified in
Section 2.01(c).
"Existing AXELs Series B Commitment" means, with respect to any
Existing AXELs Series B Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption
"Existing AXELs Series B Commitment" or, if such Under has entered into
one or more Assignments and Acceptances, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "Existing AXELs Series B Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Existing AXELs Series B Lender" means any Lender that has an
Existing AXELs Series B Commitment.
"Existing Debt" means Debt of the Company and its Subsidiaries
outstanding immediately before giving effect to the Acquisition.
"Extraordinary Receipt" means any cash received by or paid to or
for the account of any Person consisting of tax refunds, pension plan
reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such
<PAGE> 52
22
proceeds constitute compensation for lost earnings), condemnation awards (and
payments in lieu thereof), indemnity payments and payments in respect of
judgments (including, without limitation, punitive damages); provided, however,
that an Extraordinary Receipt shall not include cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu thereof),
indemnity payments or payments in respect of judgments or settlements (i) to
the extent that such proceeds, awards or payments in respect of loss or damage
to equipment, fixed assets or real property are applied to replace or repair
such equipment, fixed assets or real property to the extent such replacement or
repair is not prohibited under the terms of the Collateral Documents, so long
as such application is commenced within 3 months after the later of the
occurrence of such loss or damage and the receipt of such proceeds, awards or
payments in respect thereof or (ii) to the extent that such proceeds, awards or
payments reimburse such Person for the prior payment of out-of-pocket costs.
"Facility means the Term Loan Facility, the AXELs Series A
Facility, the AXELs Series B Facility, the Acquisition Facility, the
Acquisition B Facility, the Working Capital Facility or the Letter of
Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Financial Statements" means, at any time, the most recent
financial statements furnished, or required to be furnished, by the
Borrower to the Lender Parties pursuant to Section 5.03(b) or (c), as
the case may be.
"First Closing Date" means May 1, 1996, the date on which the
Initial Extension of Credit occurred following satisfaction or waiver of
the conditions set forth in Sections 3.01 and 3.02.
"First Prepayment Date" has the meaning specified in Section
2.06(b)(iv).
<PAGE> 53
23
"Fiscal Year" means (except as otherwise stated in the
definition of Excess Cash Flow in this Section 1.01 and in Section
5.02(q)) a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Foreign Subsidiary" means a Subsidiary of the Borrower
organized under the laws of a country other than the United States or
any State thereof.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date,
including, without limitation, all amounts of Funded Debt of such
Person required to be paid or prepaid within one year after the date
of determination.
"GAAP" has the meaning specified in Section 1.03.
"Goldman" has the meaning specified in the recital of parties
to this Agreement.
"Goldman Investors" has the meaning specified in the
Preliminary Statements.
"Guaranties" means the Holdings Guaranty, the Subsidiary
Guaranty and any other guaranty delivered pursuant to Section 5.01(n).
"Guarantors" means Holdings and the Subsidiary Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hedge Bank" means any Lender Party or any of its Affiliates
in its capacity as a party to a Bank Hedge Agreement.
<PAGE> 54
24
"Holdings" has the meaning specified in the Preliminary
Statements.
"Holdings Guaranty" has the meaning specified in Section
3.01(p)(x).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum
dated February 1996 relating to the Borrower and the Company and used
by the Arrangers and the Syndication Agent in connection with the
syndication of the Commitments, as amended or supplemented from time
to time in writing.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
under the Original Credit Agreement.
Initial Issuing Banks" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning
specified in Section 3.01(p)(viii).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance under a
Facility that ends after any principal
<PAGE> 55
25
repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances
having Interest Periods that end on or prior to such principal
repayment installment date for such Facility shall be at least
equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Inventory" has the meaning specified in the Security
Agreement.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or
other ownership or profit interest, warrants, rights, options,
obligations or other securities or all or substantially all of the
assets of such Person, any capital contribution to such Person or any
other direct or indirect investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (j) or (k) of the definition of
"Debt" in respect of such Person, any acquisition by way of a merger
or consolidation and any purchase or other acquisition or construction
of bowling centers.
"IPO" means an initial public offering of common stock of
Parent.
<PAGE> 56
26
"Issuing Banks" means each Initial Issuing Bank, any other
Working Capital Lender that has a Letter of Credit Commitment set
forth opposite its name on Schedule I hereto, any other Working
Capital Lender approved as an Issuing Bank by the Administrative Agent
and, so long as no Default shall have occurred and be continuing, by
the Borrower (such approval not to be unreasonably withheld or
delayed) and each Eligible Assignee to which a Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.07 so
long as each such Working Capital Lender or Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register).
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(g)(ii).
"Lender Party" means any Lender or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $10,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
<PAGE> 57
27
"Letters of Credit" has the meaning specified in Section
2.01(g).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Guaranties and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranties, (iv) the Collateral Documents, (v) the Amendment
Documents, (vi) the Second Amendment Documents and (vii) each Letter
of Credit Agreement and (b) for purposes of the Guaranties and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranties, (iv) the Collateral Documents, (v) the Amendment
Documents, (vi) the Second Amendment Documents, (vii) each Letter of
Credit Agreement and (viii) each Bank Hedge Agreement, in each case as
amended, supplemented or otherwise modified from time to time.
"Loan Parties" means the Company, the Borrower and the
Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or other-wise), operations,
performance, properties or prospects of Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole,
(b) the rights and remedies of any Agent or any Lender Party under any
Loan Document or Related Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document (excluding
Mortgages covering Collateral which, in the aggregate, is immaterial)
or Related Document to which it is or is to be a party.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 5% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the
most recent fiscal quarter of the Borrower) or at least 5% of the
total Consolidated revenues or net income of the Borrower and its
Subsidiaries for the 12-month period ending on the last day of the
most recent fiscal
<PAGE> 58
28
quarter of the Borrower; provided, however, that any Subsidiary formed
or acquired after the last day of the most recent fiscal quarter of
the Borrower that would have been a Material Subsidiary if it had been
formed or acquired on or prior to the last day of such fiscal quarter
shall be a Material Subsidiary for purposes hereof from and after the
date of its formation or acquisition.
"Modified Consolidated EBITDA" means, for any Rolling Period,
Consolidated EBITDA of the Borrower and its Subsidiaries for such
Rolling Period, provided, however, that at any time of determination,
(i) solely with respect to any constructed New Center, Modified
Consolidated EBITDA shall be calculated using Adjusted EBITDA of such
New Center and (ii) solely with respect to any New Center acquired
within the immediately preceding 15 months, Modified Consolidated
EBITDA shall be calculated using the actual EBITDA of such New Center
for such Rolling Period (including, without limitation, for any
portion of such Rolling Period that is prior to the date of
acquisition of such New Center).
"Mortgage Policy" has the meaning specified in Section
3.01(p)(ix).
"Mortgage Amendments" has the meaning specified in
Section 3.04(e)(vii).
"Mortgages" has the meaning specified in Section
3.01(p)(ix).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, that is subject to ERISA and to which any
Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person,
<PAGE> 59
29
or any Extraordinary Receipt received by or paid to or for the account
of any Person, the aggregate amount of cash received from time to time
(whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection
with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions and other reasonable and customary
expenses incurred in connection with such transaction and (b) the
amount of taxes payable in connection with or as a result of such
transaction, in each case to the extent, but only to the extent, that
the amounts so deducted are, at or prior to the time of receipt of
such cash, actually paid or payable to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any
Loan Party and are properly attributable to such transaction or to the
asset that is the subject thereof; provided, however, that in the case
of taxes that are deductible under clause (b) but for the fact that at
the time of receipt of such cash, such taxes have not been actually
paid or are not then payable, such Person may deduct an amount (the
"Reserved Amount") equal to the amount reserved in accordance with
GAAP for such Person's reasonable estimate of such taxes, other than
taxes for which such Person is indemnified, provided further, however,
that at the time such taxes are paid, the Borrower shall prepay the
Advances outstanding hereunder, in accordance with the terms of
Section 2.06(b)(ii), in an amount equal to the amount, if any, by
which the Reserved Amount exceeds the amount of taxes actually paid.
"New AXELs Series B Advance" has the meaning specified in
Section 2.01(c).
"New AXELs Series B Commitment" means, with respect to any
New AXELs Series B Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the caption "New AXELs
Series B Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as
such Lender's "New AXELs Series B Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"New AXELs Series B Lender" means any Lender that has a New
AXELs Series B Commitment.
"New Center" means, at any time of determination, any bowling
center acquired (whether by means of a stock or asset acquisition) or
constructed by the Borrower or any of its Subsidiaries after the First
Closing Date and less than 15 months prior to such date of
determination, provided that for purposes hereof, the time of any such
acquisition shall be the date of consummation of such acquisition and
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30
the time of any such construction shall be the date of the opening of
such bowling center for business.
"Note" means a Term Loan Note, an AXELs Series A Note, an
AXELs Series B Note, a Working Capital Note, an Acquisition Note or an
Acquisition B Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(bb).
"Other Additions" means, for any fiscal quarter of the
Borrower, (a) during the period from the First Closing Date through
December 31, 1997, an amount equal to the sum of (i) the Support
Amount for such fiscal quarter and (ii) extraordinary, unusual or
nonrecurring, or expected to be non-recurring, expenses and expenses
resulting from changes in the Borrower's accounting or management
policies or practices, in each case of the Borrower and its
Subsidiaries for such fiscal quarter, all as determined in the
judgment of a Designated Financial Officer, in an aggregate amount,
under this clause (ii), not to exceed $20,000,000 from and after the
First Closing Date, and (b) thereafter, zero.
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"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent" has the meaning specified in the Preliminary
Statements.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Permitted Encumbrances" means, with respect to any real
property, minor survey exceptions, minor title irregularities,
easements, rights-of-way, restrictions and other similar charges or
encumbrances not interfering with the ordinary conduct of the business
of the Loan Parties and their Subsidiaries which were not incurred in
connection with and do not secure Debt or other extensions of credit
and which do not individually or in the aggregate materially adversely
affect the value of the properties of the Loan Parties and their
Subsidiaries taken as a whole or materially impair its use, taken as a
whole with all other properties of the Loan Parties and their
Subsidiaries, in the operation of the business of the Loan Parties and
their Subsidiaries.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', landlords', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a
period of more than 30 days or are being contested in good faith by
proper proceedings and as to which appropriate reserves are being
maintained; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public
or statutory obligations; and (d) Permitted Encumbrances, provided,
however, that no Lien in favor of the PBGC shall, in any event, be a
Permitted Lien.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital
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32
stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Pro Rata Share" of any amount means (a) with respect to any
Working Capital Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Working
Capital Commitment at such time and the denominator of which is the
Working Capital Facility at such time, (b) with respect to any
Acquisition Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Acquisition Commitment at such time and the denominator of which is
the Acquisition Facility at such time and (c) with respect to any
Acquisition B Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Acquisition B Commitment at such time and the denominator of which is
the Acquisition B Facility at such time.
"Purchase Agreement" has the meaning specified in the
Preliminary Statements.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
"Reduction Amount" has the meaning specified in Section
2.06(b)(vii).
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Purchase Agreement, the
Subordinated Debt Documents, the Tax Agreement, the Stockholders'
Agreement and the Support Agreement.
"Required Lenders" means, at any time, (i) Lenders owed or
holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Term Loan Advances, Working Capital
Advances, Acquisition Advances and Acquisition B Advances outstanding
at such time, (b) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (c) the aggregate unused Commitments
under the
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33
Term Loan Facility, under the Acquisition Facility and under the
Acquisition B Facility at such time and (d) the aggregate Unused
Working Capital Commitments at such time and (ii) Lenders owed or
holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the AXELs Series A Advances and AXELs
Series B Advances outstanding at such time and (b) the aggregate
unused Commitments under the AXELs Series A Facility and AXELs Series
B Facility at such time; provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (B) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit
outstanding at such time, (C) the aggregate unused Term Loan, AXELs
Series A, AXELs Series B, Acquisition and Acquisition B Commitments of
such Lender at such time and (D) the Unused Working Capital Commitment
of such Lender at such time. For purposes of this definition, the
aggregate principal amount of Letter of Credit Advances owing to any
Issuing Bank and the Available Amount of each Letter of Credit shall
be considered to be owed to the Working Capital Lenders ratably in
accordance with their respective Working Capital Commitments.
"Responsible Officer" means any officer of any Loan Party or
any of its Subsidiaries.
"Rolling Period" means, with respect to any fiscal quarter of
the Borrower and its Subsidiaries, such fiscal quarter and the three
consecutive immediately preceding fiscal quarters.
"Second Amendment Documents" means (a) Amendment No. 2, (b)
the Acquisition B Notes and (c) the Second Mortgage Amendments, in
each case as amended, supplemented or otherwise modified form time to
time.
"Second Closing Date" means the date on which the New AXELs
Series B Advances are made by the New AXELs Series B Lenders following
satisfaction or waiver of the conditions set forth in Sections 3.02
and 3.04.
"Second Mortgage Amendments" has the meaning specified in
Section 3.05(e)(vii).
"Second Prepayment Date" has the meaning specified in Section
2.06(b)(iv).
"Secured Parties" means the Arrangers, the Agents, the Lender
Parties and the Hedge Banks.
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34
"Security Agreement" has the meaning specified in Section
3.01(p)(vii).
"Sellers" has the meaning specified in the Preliminary
Statements.
"Senior Subordinated Discount Notes" means the senior
subordinated discounted notes of the Borrower in an aggregate
principal amount of $452,000,000 issued pursuant to the Senior
Subordinated Discount Notes Indenture.
"Senior Subordinated Discount Notes Indenture" means the
Indenture dated as of March 21, 1996 among the Borrower, the
guarantors party thereto and American Bank National Association, as
Trustee, pursuant to which the Senior Subordinated Discount Notes are
issued, as amended, supplemented or otherwise modified from time to
time in accordance with its terms, to the extent permitted in
accordance with the Loan Documents.
"Senior Subordinated Notes" means the senior subordinated
notes of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the Senior Subordinated Notes Indenture.
"Senior Subordinated Notes Indenture" means the Indenture
dated as of March 21, 1996 among the Borrower, the guarantors party
thereto and IBJ Schroder Bank & Trust Company, as Trustee, pursuant to
which the Senior Subordinated Notes are issued, as amended,
supplemented or otherwise modified from time to time in accordance
with its terms, to the extent permitted in accordance with the Loan
Documents.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is
not engaged in
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35
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at
any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Specified Revenues" means at any time (a) in the case of any
acquisition of a New Center, aggregate revenues of such New Center for
the immediately preceding 12-month period, and (b) in the case of any
construction of a New Center, an amount equal to (i) at any time
during its first 12 full months of operations, the aggregate revenues
of such New Center for each full month it has operated times twelve
divided by the number of full months such New Center has operated and
(ii) at any time thereafter, aggregate revenues of such New Center for
the immediately preceding 12-month period.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Stockholders' Agreement" means the Stockholders' Agreement
set forth on Schedule III hereto, as amended, supplemented or
otherwise modified from time to time in accordance with its terms, to
the extent permitted in accordance with the Loan Documents.
"Subordinated Debt" means the Subordinated Notes and any other
Debt of any Loan Party that is subordinated to the Obligations of such
Loan Party under the Loan Documents on, and that otherwise contains,
terms and conditions satisfactory to the Required Lenders.
"Subordinated Debt Documents" means the Subordinated Notes
Indentures and all other agreements, indentures and instruments
pursuant to which Subordinated Debt is issued.
"Subordinated Notes" means the Senior Subordinated Notes and
the Senior Subordinated Discount Notes.
"Subordinated Notes Indentures" means the Senior Subordinated
Notes Indenture and the Senior Subordinated Discount Notes Indenture.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a
36
<PAGE> 66
36
majority of the Board of Directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes of
such corporation shall or might have voting power upon the occurrence
of any contingency), (b) the interest in the capital or profits of
such partnership, joint venture or limited liability company or (c)
the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Borrower
listed on Schedule II hereto and each other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(n).
"Subsidiary Guaranty" has the meaning specified in Section
3.01(p)(xi).
"Support Agreement" means the letter agreement dated April 11,
1996 between the Sellers and Holdings, as amended, supplemented or
otherwise modified from time to time in accordance with its terms, to
the extent permitted in accordance with the Loan Documents.
"Support Amount" means, for any period, the amount that, in
the judgment of a Designated Financial Officer, would have been
payable to the Borrower by the Sellers during such period pursuant to
the Support Agreement if the Support Agreement were then still in
effect, provided, however, that the aggregate of such amounts shall
not in any event exceed $17,500,000 from and after the First Closing
Date.
"Surviving Debt" has the meaning specified in Section 3.01(e).
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Tax Agreement" means the Tax Allocation Agreement dated as of
May 1, 1996 among Parent, the Borrower and the Borrower's Subsidiaries
(other than Foreign Subsidiaries), as amended, supplemented or
otherwise modified from time to time in accordance with its terms, to
the extent permitted in accordance with the Loan Documents.
"Tax Certificate" has the meaning specified in Section
5.03(o).
"Taxes" has the meaning specified in Section 2.12(a).
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37
"Term Facilities" means the Term Loan Facility, the AXELs
Series A Facility and the AXELs Series B Facility.
"Term Loan Advance" has the meaning specified in Section
2.01(a).
"Term Loan Borrowing" means a borrowing consisting of
simultaneous Term Loan Advances of the same Type made by the Term Loan
Lenders.
"Term Loan Commitment" means, with respect to any Term Loan
Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Term Loan Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances,
set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Term Loan Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Term Loan Facility" means, at any time, the aggregate amount
of the Term Loan Lenders' Term Loan Commitments at such time.
"Term Loan Lender" means any Lender that has a Term Loan
Commitment.
"Term Loan Note" means a promissory note of the Borrower
payable to the order of any Term Loan Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term Loan Advance made by
such Lender.
"Termination Date" means (a) with respect to the Term Loan
Facility, the Working Capital Facility, the Acquisition Facility, the
Acquisition B Facility and the Letter of Credit Facility, the earlier
of March 31, 2001 and the date of termination in whole of the Term
Loan Commitments, the Working Capital Commitments, the Acquisition
Commitments, the Acquisition B Commitments and the Letter of Credit
Commitments pursuant to Section 2.05 or 6.01, (b) with respect to the
AXELs Series A Facility, the earlier of March 31, 2003 and the date of
termination in whole of the AXELs Series A Commitments pursuant to
Section 2.05 or 6.01 and (c) with respect to the AXELs Series B
Facility, the earlier of March 31, 2004 and the date of termination in
whole of the AXELs Series B Commitments pursuant to Section 2.05 or
6.01.
"Third Closing Date" means the first date on which the
conditions set forth in Section 3.05 have been satisfied.
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38
"Total Debt/EBITDA Ratio" means, at any date of determination,
the ratio of Consolidated total Debt (other than Hedge Agreements) of
the Borrower and its Subsidiaries as at the end of the immediately
preceding Rolling Period to Consolidated EBITDA of the Borrower and
its Subsidiaries for such Rolling Period.
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory, the conditions to drawing under
which include the presentation to the Issuing Bank that issued such
Letter of Credit of negotiable bills of lading, invoices and related
documents sufficient, in the judgment of such Issuing Bank, to create
a valid and perfected lien on or security interest in such Inventory,
bills of lading, invoices and related documents in favor of such
Issuing Bank.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) such Lender's Working Capital
Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Working Capital Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of
(A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks pursuant to
Section 2.03(c) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(l) of ERISA, that is subject to ERISA and is maintained for
employees of any Loan Party or in respect of which any Loan Party
could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(d).
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39
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Working Capital Lenders.
"Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Working Capital
Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as
such Lender's "Working Capital Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commitments at
such time.
"Working Capital Lender" means any Lender that has a Working
Capital Commitment.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially
the form of Exhibit A-4 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Working Capital
Advances made by such Lender.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Term Loan Advances. Each
Term Loan Lender severally agrees, on the terms and conditions hereinafter set
forth, to make a single advance (a "Term Loan Advance") to the Borrower on the
First Closing Date in an
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40
amount not to exceed such Lender's Term Loan Commitment at such time. The Term
Loan Borrowing shall consist of Term Loan Advances made simultaneously by the
Term Loan Lenders ratably according to their Term Loan Commitments. Amounts
borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed.
(b) The AXELs Series A Advances. Each AXELs Series A
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (an "AXELs Series A Advance") to the Borrower on the
First Closing Date in an amount not to exceed such Lender's AXELs Series A
Commitment at such time. The AXELs Series A Borrowing shall consist of AXELs
Series A Advances made simultaneously by the AXELs Series A Lenders ratably
according to their AXELs Series A Commitments. Amounts borrowed under this
Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) The AXELs Series B Advances. (i) Each Existing AXELs
Series B Lender severally agrees, on the terms and conditions hereinafter set
forth, to make a single advance (an "Existing AXELs Series B Advance") to the
Borrower on the First Closing Date in an amount not to exceed such Lender's
Existing AXELs Series B Commitment at such time. The AXELs Series B Borrowing
made on the First Closing Date shall consist of Existing AXELs Series B
Advances made simultaneously by the Existing AXELs Series B Lenders ratably
according to their Existing AXELs Series B Commitments.
(ii) Each New AXELs Series B Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single advance (a
"New AXELs Series B Advance") to the Borrower on the Second Closing Date in an
amount not to exceed such Lender's New AXELs Series B Commitment at such time.
The AXELs Series B Borrowing made on the Second Closing Date shall consist of
New AXELs Series B Advances made simultaneously by the New AXELs Series B
Lenders ratably according to their New AXELs Series B Commitments. On the
Second Closing Date, all Existing AXELs Series B Advances then outstanding
shall automatically Convert to Advances with Interest Periods ending on the
same day or days as the Interest Period or Periods selected by the Borrower for
the New AXELs Series B Advances, in such amounts such that after giving effect
to such Conversion, AXELs Series B Advances comprising part of the same
Borrowing shall be owing to the AXELs Series B Lenders ratably according to
their AXELs Series B Commitments. The Borrower shall, on the Second Closing
Date, pay any amounts owing pursuant to Section 8.04(c) as a result of such
Conversion.
(iii) Amounts borrowed under this Section 2.01(c) and
repaid or prepaid may not be reborrowed.
(d) The Working Capital Advances. Each Working Capital
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a
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41
"Working Capital Advance") to the Borrower from time to time on any Business
Day during the period from the First Closing Date until the Termination Date in
an amount for each such Advance not to exceed such Lender's Unused Working
Capital Commitment at such time (subject, however, to the terms of Section
2.01(h)). Each Working Capital Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Working Capital Advances made simultaneously by the Working Capital
Lenders ratably according to their Working Capital Commitments. Within the
limits of each Working Capital Lender's Unused Working Capital Commitment in
effect from time to time, the Borrower may borrow under this Section 2.01(d),
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(d).
(e) The Acquisition Advances. Each Acquisition Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each an "Acquisition Advance") to the Borrower on any Business Day
during the period from the First Closing Date until the Availability
Termination Date in an amount not to exceed such Lender's unused Acquisition
Commitment at such time. Each Acquisition Borrowing shall be in an aggregate
amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and,
if the acquisition to be made with the proceeds of such Acquisition Borrowing
shall be for cash consideration of less than $1,000,000, such Acquisition
Borrowing shall be in the amount of $1,000,000 and, in each case, shall consist
of Acquisition Advances made simultaneously by the Acquisition Lenders ratably
according to their Acquisition Commitments. Amounts borrowed under this
Section 2.01(e) and repaid or prepaid may not be reborrowed, provided, however,
that amounts borrowed under this Section 2.01(e) and prepaid on the Second
Closing Date with the proceeds of the New AXELs Series B Advances pursuant to
Section 2.06(b)(ix) may be reborrowed under this Section 2.01(e).
(f) The Acquisition B Advances. Each Acquisition B
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each an "Acquisition B Advance") to the Borrower on any Business
Day during the period from the Third Closing Date until the Availability
Termination Date in an amount not to exceed such Lender's unused Acquisition B
Commitment at such time. Each Acquisition B Borrowing shall be in an aggregate
amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and,
if the acquisition to be made with the proceeds of such Acquisition B Borrowing
shall be for cash consideration of less than $1,000,000, such Acquisition B
Borrowing shall be in the amount of $1,000,000 and, in each case, shall consist
of Acquisition B Advances made simultaneously by the Acquisition B Lenders
ratably according to their Acquisition B Commitments. Amounts borrowed under
this Section 2.01(f) and repaid or prepaid may not be reborrowed.
(g) Letters of Credit. Each Issuing Bank severally
agrees, on the terms and conditions hereinafter set forth, to issue (or cause
its Affiliate to issue on its behalf)
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letters of credit (the "Letters of Credit") for the account of the Borrower
from time to time on any Business Day during the period from the First Closing
Date until 60 days before the Termination Date (i) in an aggregate Available
Amount for all Letters of Credit issued by such Issuing Bank not to exceed at
any time such Issuing Bank's Letter of Credit Commitment at such time and (ii)
in an Available Amount for each such Letter of Credit not to exceed the lesser
of (x) the Letter of Credit Facility at such time and (y) the Unused Working
Capital Commitments of the Working Capital Lenders at such time. No Letter of
Credit shall have an expiration date (including all rights of the Borrower or
the beneficiary to require renewal) later than the earlier of 30 days before
the Termination Date and (A) in the case of a Standby Letter of Credit, one
year after the date of issuance thereof and (B) in the case of a Trade Letter
of Credit, 60 days after the date of issuance thereof. Within the limits of
the Letter of Credit Facility, and subject to the limits referred to above, the
Borrower may request the issuance of Letters of Credit under this Section
2.01(g), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.03(c) and request the issuance of additional Letters of
Credit under this Section 2.01(g).
(h) Set Aside of Working Capital Commitments. (i) Each
Working Capital Lender's Pro Rata Share of the aggregate Unused Working Capital
Commitments shall be reserved and shall not be available to be borrowed except
for the purposes set forth below in an amount equal to the sum of the aggregate
outstanding Acquisition Advances and Acquisition B Advances to the extent the
proceeds of such Acquisition Advances or Acquisition B Advances shall not have
been used to finance acquisitions of New Centers permitted hereunder or to
refinance the costs of construction of New Centers, and shall be available to
be borrowed solely for purposes of financing one or more acquisitions or
refinancing such construction costs to the extent otherwise permitted
hereunder.
(ii) Each Working Capital Lender's Pro Rata Share of the
aggregate Unused Working Capital Commitments shall be reserved and shall not be
available to be borrowed except for the purpose set forth below in an amount
equal to the aggregate amount of Obligations guaranteed by the Borrower
pursuant to Section 5.02(b)(i)(C) during any time that such guaranteed
Obligations exceed $1,000,000 outstanding and the aggregate Unused Working
Capital Commitments shall be less than $15,000,000, and shall be available to
be borrowed solely for purposes of financing such guaranteed Obligations of the
Borrower.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or not later than 9:00 A.M. (New York
City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by
<PAGE> 73
43
telex or telecopier. Each such notice of a Borrowing (a "Notice of Borrowing")
shall be by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 1:00 P.M. (New York City time)
on the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments under the applicable Facility of
such Lender and the other Appropriate Lenders. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account; provided,
however, that, in the case of any Working Capital Borrowing, the Administrative
Agent shall first make a portion of such funds equal to the aggregate principal
amount of any Letter of Credit Advances made by any Issuing Bank and by any
other Working Capital Lender and outstanding on the date of such Working
Capital Borrowing, plus interest accrued and unpaid thereon to and as of such
date, available to such Issuing Bank and such other Working Capital Lenders for
repayment of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder unless the Borrower shall have agreed, in
writing, prior to or concurrently with the giving of the applicable Notice of
Borrowing, to be bound by the terms of Section 2.02(c) or for any Borrowing if
the aggregate amount of such Borrowing is less than $5,000,000 or if the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.09 or Section 2.10 and (ii) the Term
Loan Advances may not be outstanding as part of more than 5 separate
Borrowings, the AXELs Series A Advances may not be outstanding as part of more
than 5 separate Borrowings, the AXELs Series B Advances may not be outstanding
as part of more than 5 separate Borrowings, the Working Capital Advances made
on any date may not be outstanding as part of more than 10 separate Borrowings,
the Acquisition Borrowings may not be outstanding as part of more than 25
separate Borrowings and the Acquisition B Borrowings may not be outstanding as
part of more than 10 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Appropriate Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
<PAGE> 74
44
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have
received notice from an Appropriate Lender prior to the date of any Borrowing
under a Facility under which such Lender has a Commitment that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Advance as part of such Borrowing
for all purposes.
(e) The failure of any Lender to make the Advance
to be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11: 00 A.M. (New York City time) on
the fifth Business Day prior to the date of the proposed issuance of such
Letter of Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter
of Credit, (C) expiration date of such Letter of Credit, (D) name and address
of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such application and agreement for letter
of credit as
<PAGE> 75
45
such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (y) it has not received notice of objection to such
issuance from the Agents, such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Each Issuing Bank
shall furnish (A) to the Administrative Agent on the first Business Day of each
month a written report summarizing issuance and expiration dates of Letters of
Credit issued by such Issuing Bank during the previous month and drawings
during such month under all Letters of Credit issued by such Issuing Bank, (B)
to each Working Capital Lender on the first Business Day of each month a
written report summarizing issuance and expiration dates of Letters of Credit
issued by such Issuing Bank during the preceding month and drawings during such
month under all Letters of Credit issued by such Issuing Bank and (C) to the
Administrative Agent and each Working Capital Lender on the first Business Day
of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit issued by such Issuing Bank.
(c) Drawing and Reimbursement. The payment by any
Issuing Bank of a draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by such Issuing Bank of a Letter of
Credit Advance, which shall be a Base Rate Advance, in the amount of such
draft. Upon payment by any Issuing Bank of a draft drawn under any Letter of
Credit, such Issuing Bank shall give prompt notice thereof to the Borrower and
the Administrative Agent. Upon written demand by any Issuing Bank with an
outstanding Letter of Credit Advance, with a copy of such demand to the
Administrative Agent, each Working Capital Lender shall purchase from such
Issuing Bank, and such Issuing Bank shall sell and assign to each such Working
Capital Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of such Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender.
Promptly after receipt thereof, the Administrative Agent shall transfer such
funds to such Issuing Bank. The Borrower hereby agrees to each such sale and
assignment. Each Working Capital Lender agrees to purchase its Pro Rata Share
of an outstanding Letter of Credit Advance on (i) the Business Day on which
demand therefor is made by the Issuing Bank which made such Advance, provided
notice of such demand is given not later than 11:00 A.M. (New York
<PAGE> 76
46
City time) on such Business Day or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time. Upon any such
assignment by an Issuing Bank to any other Working Capital Lender of a portion
of a Letter of Credit Advance, such Issuing Bank represents and warrants to
such other Lender that such Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to
the extent that any Working Capital Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent, such
Working Capital Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date
of demand by such Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of such Issuing Bank, as applicable. If any Lender shall pay to the
Administrative Agent such amount for the account of such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be made by it on
the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term Loan Advances.
The Borrower shall repay to the Administrative Agent for the ratable account of
the Term Loan Lenders the aggregate outstanding principal amount of the Term
Loan Advances on the following dates in the amounts indicated (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
<TABLE>
<CAPTION>
DATE Amount
---- ------
<S> <C>
June 30, 1996 $4,375,000
September 30, 1996 $4,375,000
December 31, 1996 $13,125,000
March 31, 1997 $13,125,000
June 30, 1997 $5,000,000
September 30, 1997 $5,000,000
December 31, 1997 $15,000,000
March 31, 1998 $15,000,000
</TABLE>
<PAGE> 77
47
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
June 30, 1998 $5,625,000
September 30, 1998 $5,625,000
December 31, 1998 $16,875,000
March 31, 1999 $16,875,000
June 30, 1999 $6,875,000
September 30, 1999 $6,875,000
December 31, 1999 $20,625,000
March 31, 2000 $20,625,000
June 30, 2000 $9,375,000
September 30, 2000 $9,375,000
December 31, 2000 $28,125,000
March 31, 2001 $28,125,000
</TABLE>
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Loan Advances outstanding on such date.
(b) AXELs Series A Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the AXELs Series A Lenders
the aggregate outstanding principal amount of the AXELs Series A Advances on
the following dates in the amounts indicated (which amounts shall be reduced as
a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
June 30, 1996 $250,000
September 30, 1996 $250,000
December 31, 1996 $750,000
March 31, 1997 $750,000
June 30, 1997 $250,000
September 30, 1997 $250,000
December 31, 1997 $750,000
March 31, 1998 $750,000
June 30, 1998 $250,000
September 30, 1998 $250,000
December 31, 1998 $750,000
March 31, 1999 $750,000
June 30, 1999 $250,000
</TABLE>
<PAGE> 78
48
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
September 30, 1999 $250,000
December 31, 1999 $750,000
March 31, 2000 $750,000
June 30, 2000 $250,000
September 30, 2000 $250,000
December 31, 2000 $750,000
March 31, 2001 $750,000
June 30, 2001 $10,000,000
September 30, 2001 $10,000,000
December 31, 2001 $30,000,000
March 31, 2002 $30,000,000
June 30, 2002 $12,500,000
September 30, 2002 $12,500,000
December 31, 2002 $37,500,000
March 31, 2003 $37,500,000
</TABLE>
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the AXELs Series A Advances outstanding on such date.
(c) AXELs Series B Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the AXELs Series B Lenders
the aggregate outstanding principal amount of the AXELs Series B Advances on
the following dates in the amounts indicated (which amounts shall be reduced as
a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
June 30, 1996 $150,000
September 30, 1996 $150,000
December 31, 1996 $450,000
March 31, 1997 $843,940
June 30, 1997 $281,310
September 30, 1997 $281,310
December 31, 1997 $843,940
March 31, 1998 $843,940
June 30, 1998 $281,310
September 30, 1998 $281,310
</TABLE>
<PAGE> 79
49
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
December 31, 1998 $843,940
March 31, 1999 $843,940
June 30, 1999 $281,310
September 30, 1999 $281,310
December 31, 1999 $843,940
March 31, 2000 $843,940
June 30, 2000 $281,310
September 30, 2000 $281,310
December 31, 2000 $843,940
March 31, 2001 $843,940
June 30, 2001 $281,310
September 30, 2001 $281,310
December 31, 2001 $843,940
March 31, 2002 $843,940
June 30, 2002 $281,310
September 30, 2002 $281,310
December 31, 2002 $843,940
March 31, 2003 $843,940
June 30, 2003 $15,612,880
September 30, 2003 $15,612,880
December 31, 2003 $46,838,640
March 31, 2004 $46,838,640
</TABLE>
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the AXELs Series B Advances outstanding on such date.
(d) Working Capital Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Working Capital Lenders
on the Termination Date the aggregate outstanding principal amount of the
Working Capital Advances then outstanding.
(e) Acquisition Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Acquisition Lenders the
aggregate outstanding principal amount of the Acquisition Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
<PAGE> 80
50
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
December 31, 1999 Amortization Amount A
March 31, 2000 Amortization Amount A
June 30, 2000 Amortization Amount B
September 30, 2000 Amortization Amount B
December 31, 2000 Amortization Amount B
March 31, 2001 Amortization Amount B
</TABLE>
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Acquisition Advances outstanding on such date.
(f) Acquisition B Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Acquisition B Lenders
the aggregate outstanding principal amount of the Acquisition B Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
<TABLE>
<CAPTION>
DATE AMOUNT
---- ------
<S> <C>
December 31, 1999 Amortization Amount C
March 31, 2000 Amortization Amount C
June 30, 2000 Amortization Amount D
September 30, 2000 Amortization Amount D
December 31, 2000 Amortization Amount D
March 31, 2001 Amortization Amount D
</TABLE>
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Acquisition B Advances outstanding on such date.
(g) Letter of Credit Advances. (i) The Borrower shall
repay to the Administrative Agent for the account of each Issuing Bank and each
other Working Capital Lender that has made a Letter of Credit Advance on the
earlier of the second Business Day following the date on which such Letter of
Credit is drawn and the Termination Date the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of Credit shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms
<PAGE> 81
51
of this Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any
rights the Borrower might have or might acquire as a result of the payment by
any Issuing Bank of any draft or the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto
(all of the foregoing being, collectively, the "L/C Related
Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations of the Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time against
any beneficiary or any transferee of a Letter of Credit (or
any Persons for whom any such beneficiary or any such
transferee may be acting), any Issuing Bank or any other
Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or
waiver of or consent to departure from any Guaranty or any
other guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including, without limitation, any other circumstance that
might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
<PAGE> 82
52
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least five Business Days' notice to
the Administrative Agent, terminate in whole or reduce in part the unused
portions of the Term Loan Commitments, the AXELs Series A Commitments, the
Existing AXELs Series B Commitments, the New AXELs Series B Commitments, the
Letter of Credit Facility, the Unused Working Capital Commitments, the
Acquisition Commitments or the Acquisition B Commitments; provided, however,
that each partial reduction of a Facility (i) shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term Loan
Borrowing, after giving effect to such Term Loan Borrowing, and from time to
time thereafter upon each repayment or prepayment of the Term Loan Advances,
the aggregate Term Loan Commitments of the Term Loan Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate Term Loan Commitments immediately prior to
such reduction exceed the aggregate unpaid principal amount of the Term Loan
Advances then outstanding.
(ii) On the date of the AXELs Series A Borrowing, after
giving effect to such AXELs Series A Borrowing, and from time to time
thereafter upon each repayment or prepayment of the AXELs Series A Advances,
the aggregate AXELs Series A Commitments of the AXELs Series A Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate AXELs Series A Commitments immediately
prior to such reduction exceed the aggregate unpaid principal amount of the
AXELs Series A Advances then outstanding.
(iii) On the date of each of the AXELs Series B Borrowings
comprised of Existing AXELs Series B Advances, after giving effect to such
AXELs Series B Borrowings, and from time to time thereafter upon each repayment
or prepayment of the AXELs Series B Advances, the aggregate AXELs Series B
Commitments of the AXELs Series B Lenders shall be automatically and
permanently reduced, on a pro rata basis, by an amount equal to the amount by
which the aggregate AXELs Series B Commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the AXELs Series B
Advances then outstanding.
(iv) On the date of each of the AXELs Series B Borrowings
comprised of the initial New AXELs Series B Advances, after giving effect to
such AXELs Series B Borrowings, and from time to time thereafter upon each
repayment or prepayment of such New AXELs Series B Advances, the aggregate New
AXELs Series B Commitments of the New AXELs Series B Lenders shall be
automatically and permanently reduced, on a pro rata
<PAGE> 83
53
basis, by an amount equal to the amount by which the aggregate New AXELs Series
B Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the New AXELs Series B Advances then outstanding.
(v) On the Availability Termination Date, after giving
effect to any Acquisition Borrowing on such day, and from time to time
thereafter upon each repayment or prepayment of the Acquisition Advances, the
aggregate Acquisition Commitments of the Acquisition Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate Acquisition Commitments immediately prior
to such reduction exceed the aggregate unpaid principal amount of the
Acquisition Advances then outstanding.
(vi) On the Availability Termination Date, after giving
effect to any Acquisition B Borrowing on such day, and from time to time
thereafter upon each repayment or prepayment of the Acquisition B Advances, the
aggregate Acquisition B Commitments of the Acquisition B Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate Acquisition B Commitments immediately
prior to such reduction exceed the aggregate unpaid principal amount of the
Acquisition B Advances then outstanding.
(vii) The Working Capital Facility shall be automatically
and permanently reduced on a pro rata basis on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i), (ii), (iii) or
(iv) in an amount equal to the applicable Reduction Amount, provided that each
such reduction of the Working Capital Facility shall be made ratably among the
Working Capital Lenders in accordance with their Working Capital Commitments.
(viii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Working Capital
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Working Capital Facility after giving effect to such
reduction of the Working Capital Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon at least five Business Days' notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment (including,
without limitation, as a result of any refinancing in part or in whole of
amounts outstanding under the Loan Documents), and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with (i) accrued interest to the date of such prepayment on the
aggregate principal amount prepaid and (ii) in the case of any such prepayment
of any Advances other than Term Loan Advances, Acquisition Advances,
Acquisition B Advances, Working Capital Advances and
<PAGE> 84
54
Letter of Credit Advances prior to the first anniversary of the First Closing
Date, a premium of 1-3/4% of the aggregate principal amount so prepaid, or on
or after the first anniversary of the First Closing Date but prior to the
second anniversary of the First Closing Date, a premium of 1% of the aggregate
principal amount so prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (y) if any prepayment of a
Eurodollar Rate Advance shall be made on a date other than the last day of an
Interest Period therefor the Borrower shall also pay any amounts owing pursuant
to Section 8.04(c) and (z) prepayments of the Acquisition Facility, the
Acquisition B Facility and the Term Facilities shall be made ratably among such
Facilities, to be applied to the installments of each such Facility on a pro
rata basis.
(b) Mandatory. (i) The Borrower shall, on the 90th day
following the end of each Fiscal Year, prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings in an amount equal to the
Excess Cash Flow Amount for such Fiscal Year. Each such prepayment shall be
applied first to the Acquisition Facility, the Acquisition B Facility and the
Term Facilities in accordance with, and subject to the terms of, clause (iv)
below and second ratably to the Working Capital Facility as set forth in clause
(vii) below.
(ii) The Borrower shall, on the date of receipt of the Net
Cash Proceeds by any Loan Party or any of its Subsidiaries or, in the case of
clause (C) below, Parent from (A) the sale, lease, transfer or other
disposition of any assets of any Loan Party or any of its Subsidiaries (other
than any sale, lease, transfer or other disposition of assets pursuant to
clause (i), (ii), (iii), (iv) or (v) of Section 5.02(e) and other than the sale
of assets pursuant to clause (vi) of Section 5.02(e) to the extent that the Net
Cash Proceeds of such sale do not exceed, in the aggregate from the First
Closing Date, $10,000,000), (B) the incurrence or issuance by any Loan Party or
any of its Subsidiaries of any Debt (other than Debt incurred or issued
pursuant to clause (i), (ii) or (iii) of Section 5.02(b)), (C) the sale or
issuance by Parent of any capital stock or other ownership or profit interest,
any securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights or options to acquire
capital stock or other ownership or profit interest, in each case in this
clause (C) in an initial public offering or subsequent offering of capital
stock of Parent and (D) any Extraordinary Receipt received by or paid to or for
the account of any Loan Party or any of its Subsidiaries and not otherwise
included in clause (A) or (B) above, prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings equal to the amount of such
Net Cash Proceeds. Each such prepayment shall be applied first to the
Acquisition Facility, the Acquisition B Facility and the Term Facilities in
accordance with, and subject to the terms of, clause (iv) below and second
ratably to the Working Capital Facility as set forth in clause (vii) below.
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(iii) Anything contained in this Section 2.06(b) to the
contrary notwithstanding, (A) if, following the occurrence of any "Asset Sale"
(as such term is defined in the Senior Subordinated Notes Indenture or the
Senior Subordinated Discount Notes Indenture) by any Loan Party or any of its
Subsidiaries, the Borrower is required to commit by a particular date (a
"Commitment Date") to apply or cause its Subsidiaries to apply an amount equal
to any of the "Net Proceeds" (as defined in the Senior Subordinated Notes
Indenture or the Senior Subordinated Discount Notes Indenture, as the case may
be) thereof in a particular manner, or to apply by a particular date (an
"Application Date") an amount equal to any such "Net Proceeds" in a particular
manner, in either case in order to excuse the Borrower from being required to
make an "Asset Sale Offer" (as defined in the Senior Subordinated Notes
Indenture or the Senior Subordinated Discount Notes Indenture, as the case may
be) in connection with such "Asset Sale," and the Borrower shall have failed to
so commit or to so apply an amount equal to such "Net Proceeds" at least 60
days before the Commitment Date or the Application Date, as the case may be, or
(B) if the Borrower at any other time shall have failed to apply or commit or
cause to be applied an amount equal to any such "Net Proceeds," and, within 60
days thereafter assuming no further application or commitment of an amount
equal to such "Net Proceeds" the Borrower would otherwise be required to make
an "Asset Sale Offer" in respect thereof, then in either such case the Borrower
shall immediately apply or cause to be applied an amount equal to such "Net
Proceeds" to the payment of the Advances in the manner set forth in Section
2.06(b)(ii) in such amounts as shall excuse the Borrower from making any such
"Asset Sale Offer".
(iv) Prepayments of the Acquisition Facility, the
Acquisition B Facility and the Term Facilities pursuant to Section 2.06(b)(i),
(ii) or (iii) shall be made ratably among such Facilities, to be applied to the
installments of each such Facility on a pro rata basis until such installments
are paid in full; provided, however, that with respect to prepayments made
prior to or on the second anniversary of the First Closing Date, once
prepayments in a principal amount of $25,000,000 or more in the aggregate since
the First Closing Date shall have been applied to the AXELs Series A Facility
and the AXELs Series B Facility then the Lenders under such Facilities, at each
such Lender's option, may elect not to accept such prepayment, in which event
the provisions of the next sentence shall apply. With respect to such
prepayments made prior to or on the second anniversary of the First Closing
Date, once the AXELs Series A Facility and the AXELs Series B Facility shall
have been prepaid in a principal amount of $25,000,000 in the aggregate since
the First Closing Date, then upon receipt by the Administrative Agent of such
prepayment, the amount of the prepayment that is available to prepay such
Facilities (subject to the proviso to the immediately preceding sentence) shall
be deposited in the Cash Collateral Account (the "First Prepayment Amount"),
pending application of such amount on the First Prepayment Date and the Second
Prepayment Date as set forth below and promptly after such receipt (the date of
such receipt being the "Receipt Date"), the Administrative Agent shall give
written notice to the AXELs Series A Lenders and the AXELs Series B Lenders of
the amount available to prepay the
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Advances and the date on which such prepayment shall be made (the "First
Prepayment Date"), which date shall be 10 days after the Receipt Date. Any
Lender declining such prepayment (a "First Declining Lender") shall give
written notice to the Administrative Agent by 12:00 Noon (New York City time)
on the Business Day immediately preceding the First Prepayment Date. On the
First Prepayment Date, an amount equal to that portion of the First Prepayment
Amount accepted by the AXELs Series A Lenders and the AXELs Series B Lenders
other than the First Declining Lenders (such Lenders being the "First Accepting
Lenders") to prepay Advances owing to such First Accepting Lenders shall be
withdrawn from the Cash Collateral Account and applied to prepay Advances owing
to such First Accepting Lenders on a pro rata basis and any amounts that would
otherwise have been applied to prepay Advances owing to the First Declining
Lenders (the "Second Prepayment Amount") shall instead be retained in the Cash
Collateral Account and offered to the First Accepting Lenders to prepay
Advances owing to such First Accepting Lenders. The Administrative Agent
shall, on or prior to the First Prepayment Date, give written notice to the
First Accepting Lenders of the Second Prepayment Amount that is available to
prepay the Advances owing to such First Accepting Lenders and the date on which
such prepayment shall be made (the "Second Prepayment Date"), which date shall
be 10 days after the First Prepayment Date. Any First Accepting Lender
declining such prepayment (a "Second Declining Lender") shall give written
notice to the Administrative Agent by 12:00 Noon (New York City time) on the
Business Day immediately preceding the Second Prepayment Date. On the Second
Prepayment Date, an amount equal to the Second Prepayment Amount shall be
withdrawn from the Cash Collateral Account and applied to prepay Advances owing
to the First Accepting Lenders other than the Second Declining Lenders (such
Lenders being the "Second Accepting Lenders") on a pro rata basis and any
amounts that would otherwise have been applied to prepay Advances owing to
Second Declining Lenders shall instead be applied first to prepay Advances
owing to the Acquisition Lenders, the Acquisition B Lenders and the Term Loan
Lenders on a pro rata basis and, in each case, to the installments thereof on a
pro rata basis and second ratably to prepay the Working Capital Facility as set
forth in clause (vii) below and, if the Acquisition Facility, the Acquisition B
Facility, Term Loan Facility and Working Capital Facility shall have been paid
in full and terminated, amounts that would have been otherwise applied to
prepay Advances under such Facilities shall be applied instead to prepay
Advances owing to the Second Accepting Lenders.
(v) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Working Capital Advances comprising part of
the same Borrowings and the Letter of Credit Advances equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Working Capital
Advances and (y) the Letter of Credit Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds
(B) the Working Capital Facility on such Business Day.
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(vi) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Account to equal
the amount by which the aggregate Available Amount of all Letters of Credit
then outstanding exceeds the Letter of Credit Facility on such Business Day.
(vii) Prepayments of the Working Capital Facility made
pursuant to clause (i), (ii), (iii) or (iv) above shall be first applied to
prepay Letter of Credit Advances then outstanding until such Advances are paid
in full, second applied to prepay Working Capital Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full and
third deposited in the L/C Cash Collateral Account to cash collateralize 100%
of the Available Amount of the Letters of Credit then outstanding; and, in the
case of prepayments of the Working Capital Facility required pursuant to clause
(i), (ii), (iii) or (iv) above, the amount remaining (if any) after the
prepayment in full of the Advances then outstanding and the 100% cash
collateralization of the aggregate Available Amount of Letters of Credit then
outstanding (the sum of such prepayment amounts, cash collateralization amounts
and remaining amount being referred to herein as the "Reduction Amount") may be
retained by the Borrower and the Working Capital Facility shall be permanently
reduced as set forth in Section 2.05(b)(vi). Upon the drawing of any Letter of
Credit for which funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the relevant Issuing Bank or Working
Capital Lenders, as applicable.
(viii) Notwithstanding anything to the contrary contained in
subsection (b)(ii) of this Section 2.06, so long as no Default shall have
occurred and be continuing, if, on any date on which a prepayment of Advances
would otherwise be required pursuant to subsection (b)(ii) of this Section
2.06, the aggregate amount of Net Cash Proceeds or other amounts otherwise
required by such subsection to be applied to prepay Advances on such date are
less than or equal to $1,000,000, the Borrower may defer such prepayment until
the date on which the aggregate amount of Net Cash Proceeds or other amounts
otherwise required by such subsection to be applied to prepay Advances exceeds
$1,000,000. During such deferral period, the Borrower may apply all or any part
of such aggregate amount to prepay Working Capital Advances and may, subject to
the fulfillment of the conditions set forth in Section 3.02, reborrow such
amounts (which amounts, to the extent originally constituting Net Cash
Proceeds, shall be deemed to retain their original character as Net Cash
Proceeds when so reborrowed) for application as required by this Section 2.06.
Upon the occurrence of a Default, the Borrower shall immediately prepay
Advances in the amount of all Net Cash Proceeds received by the Borrower and
other amounts, as applicable, that are required to be applied to prepay
Advances by this Section 2.06 (without giving effect to the first and second
sentences of this subsection (b)(viii)) but which have not previously been so
applied.
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(ix) The Borrower shall, on the date of receipt of the
proceeds of the New AXELs Series B Advances, prepay an aggregate principal
amount of the Acquisition Advances comprising part of the same Borrowings equal
to the amount of such proceeds minus the aggregate amount paid from such
proceeds for fees and expenses incurred in connection with Amendment No. 3.
(x) All prepayments under this subsection (b) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to
time, payable in arrears quarterly on the first day of each
July, October, January and April during such periods and on
the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods
as such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period,
payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on
the dates referred to in clause (a)(i) or (a)(ii) above and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above
and (ii) to the fullest extent permitted by law, the amount of any interest,
fee or other amount payable hereunder that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full, payable in
arrears on the date such amount shall be paid in full and on demand, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid, in the case of interest, on the Type of Advance on which
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such interest has accrued pursuant to clause (a)(i) or (a)(ii) above, and, in
all other cases, on Base Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall
pay to the Administrative Agent for the account of the Lenders a commitment
fee, from the date of the acceptance of the Initial Lenders' Commitments by the
Borrower in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
on the date of the initial Borrowing hereunder, thereafter quarterly on the
first day of each July, October, January and April, commencing July 1, 1996,
and on the Termination Date, at a rate per annum equal to the Applicable
Percentage in effect from time to time on the average daily unused portion of
each Appropriate Lender's Term Loan Commitment, AXELs Series A Commitment,
AXELs Series B Commitment, Acquisition Commitment and Acquisition B Commitment,
and on the sum of the average daily Unused Working Capital Commitment of such
Lender during such quarter; provided, however, that no commitment fee shall
accrue on any of the Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay
to the Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears quarterly on the first day of each July,
October, January and April, commencing July 1, 1996, and on the earliest to
occur of the full drawing, expiration, termination or cancellation of any
Letter of Credit and on the Termination Date, on such Lender's Pro Rata Share
of the average daily aggregate Available Amount during such quarter of all
Letters of Credit outstanding from time to time at a rate per annum equal to
the Applicable Margin for Eurodollar Rate Advances in effect from time to time.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees and
other fees and charges in connection with the issuance or administration of
each Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for its own account such fees as may from time to time
be agreed between the Borrower and the Administrative Agent.
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SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section
2.10, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Eurodollar Rate Advance with an Interest Period of one month.
(iii) Upon the occurrence and during the continuance of any
Default, (x)each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance
and (y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either
(i) the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate
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Advances or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit or of agreeing to make or of making or maintaining Letter
of Credit Advances (excluding for purposes of this Section 2.10 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.12 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender Party is organized or
has its Applicable Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, upon demand by such Lender Party (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party additional amounts sufficient to
compensate such Lender Party for such increased cost; provided, however, that,
before making any such demand, each Lender Party agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender Party,
be otherwise disadvantageous to such Lender Party. A certificate as to the
amount of such increased cost, submitted to the Borrower by such Lender Party,
shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that either (i) the
enactment of or any change in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be maintained by
such Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party or such corporation (with
a copy of such demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender Party, from time to
time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to
issue or participate in Letters of Credit hereunder or to the issuance or
maintenance of or participation in any Letters of Credit; provided, however,
that, before making any such demand, each Lender Party agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
additional amounts payable under this subsection (b) and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
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(c) If, with respect to any Eurodollar Rate Advances
under any Facility, Lenders owed at least 25% of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under any Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section
2.15), not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds, with payments being received by the Administrative Agent
after such time being deemed to have been received on the next succeeding
Business Day. The Administrative Agent will promptly thereafter cause like
funds to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lender Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to
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Section 8.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) If the Administrative Agent receives funds for
application to the Obligations under the Loan Documents under circumstances for
which the Loan Documents do not specify the Advances or the Facility to which,
or the manner in which, such funds are to be applied, the Administrative Agent
may, but shall not be obligated to, elect to distribute such funds to each
Lender Party ratably in accordance with such Lender Party's proportionate share
of the principal amount of all outstanding Advances and the Available Amount of
all Letters of Credit then outstanding, in repayment or prepayment of such of
the outstanding Advances or other Obligations owed to such Lender Party, and
for application to such principal installments, as the Administrative Agent
shall direct.
(c) The Borrower hereby authorizes each Lender Party, if
and to the extent payment owed to such Lender Party is not made when due
hereunder or, in the case of a Lender, under the Note held by such Lender, to
charge from time to time against any or all of the Borrower's accounts with
such Lender Party any amount so due.
(d) All computations of interest, fees and Letter of
Credit commissions shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
commitment fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(f) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to
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such Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender Party shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender Party together with interest thereon, for each day from the date such
amount is distributed to such Lender Party until the date such Lender Party
repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and each Agent, taxes that are imposed on its overall net income by the United
States and taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or such Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender Party,
taxes that are imposed on its overall net income (and franchise taxes imposed
in lieu thereof) by the state or foreign jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender Party or any Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or such Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender Party and
each Agent for and hold it harmless against the full amount of Taxes and Other
Taxes, and the full amount of taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.12, imposed on or paid by such Lender
Party or such Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or
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with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party or such Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the
Notes by or on behalf of the Borrower through an account or branch outside the
United States or by or on behalf of the Borrower by a payor that is not a
United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each
other Lender Party, and from time to time thereafter as requested in writing by
the Borrower (but only so long thereafter as such Lender Party remains lawfully
able to do so), provide each of the Administrative Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224 or (in the case of a
Lender Party that is claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code with respect to
payments of "portfolio interest") form W-8 (and, if such Lender Party delivers
a form W-8, a certificate representing that such Lender Party is not a "bank"
for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party
is exempt from or entitled to a reduced rate of United States withholding tax
on payments pursuant to this Agreement or the Notes or, in the case of a Lender
Party providing a form W-8, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. If the forms provided by a Lender
Party at the time such Lender Party first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from the definition
of Taxes hereunder unless and until such Lender Party provides the appropriate
form certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from the definition of Taxes
hereunder for periods governed by such form; provided, however, that. if at the
date of the Assignment and Acceptance
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pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includible in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party
has failed to provide the Borrower with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts
payable pursuant to this Section 2.12 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of
an assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to
all Lender Parties hereunder and under the Notes at such time obtained by all
of the Lender Parties at such time, such Lender Party shall forthwith purchase
from the other Lender Parties such interests or
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participating interests in the Obligations due and payable or owing to them, as
the case may be, as shall be necessary to cause such purchasing Lender Party to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the purchasing Lender
Party the purchase price to the extent of such Lender Party's ratable share
(according to the proportion of (i) the purchase price paid to such Lender
Party to (ii) the aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party's ratable share
(according to the proportion of (i) the amount of such other Lender Party's
required repayment to (ii) the total amount so recovered from the purchasing
Lender Party) of any interest or other amount paid or payable by the purchasing
Lender Party in respect of the total amount so recovered; provided further
that, so long as the Obligations under the Loan Documents shall not have been
accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor
of the Borrower in the amount of such interest or participating interest, as
the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of (i) the Term
Loan Advances, the AXELs Series A Advances and the Existing AXELs Series B
Advances shall be available (and the Borrower agrees that it shall use such
proceeds) solely to pay to the Sellers the cash consideration for the
Acquisition, pay transaction fees and expenses and refinance certain Existing
Debt, (ii) the New AXELs Series B Advances shall be available (and the Borrower
agrees that it shall use such proceeds) solely to prepay outstanding
Acquisition Advances and to pay transaction fees and expenses incurred in
connection with Amendment No. 3, (iii) the Acquisition Advances and the
Acquisition B Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely to finance certain acquisitions to the extent
permitted hereunder (whether on the date of such acquisition or otherwise), to
refinance construction costs of new bowling centers after the completion of the
construction thereof and to provide working capital for the Borrower and its
Subsidiaries to the extent not used for such acquisitions, and (iv) the Working
Capital Advances and the issuances of Letters of Credit shall be available (and
the Borrower agrees that it shall use such proceeds and Letters of Credit)
solely (a) to provide working capital for the Borrower and its Subsidiaries,
(b) to finance certain acquisitions to the extent permitted hereunder and to
refinance construction costs of new bowling centers after the completion of the
construction thereof, in each case in this clause (b) to the extent Acquisition
Advances or the Acquisition B Advances have previously been used to provide
working capital for the Borrower and its Subsidiaries, (c) to make any payments
required under the Support
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Agreement, (d) to pay to the Sellers the "purchase price adjustment" (if any)
required to be paid pursuant to the Purchase Agreement and (e) to finance
payments required under guarantees permitted by Section 5.02(b)(iii)(1).
SECTION 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other
loan Document to or for the account of such Defaulting Lender, then the
Borrower may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of the Borrower to make such payment to or for the account
of such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower
shall so set off and otherwise apply its obligation to make any such payment
against the obligation of such Defaulting Lender to make any such Defaulted
Advance on or prior to such date, the amount so set off and otherwise applied
by the Borrower shall constitute for all purposes of this Agreement and the
other Loan Documents an Advance by such Defaulting Lender made on the date
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01,
even if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to any Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted
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Amount. In the event that the Administrative Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or Lender Parties,
ratably in accordance with the respective portions of such Defaulted Amounts
payable at such time to the Administrative Agent and such other Agents and
Lender Parties and, if the amount of such payment made by the Borrower shall at
such time be insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent and the other Agents and Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amount then
owing to the Agents, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or
any other Lender Party shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c).
The terms applicable to such account, including the rate of interest payable
with respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this
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subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to
time to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent or any
other Agent or Lender Party, as and when such Advances or amounts are required
to be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) first, to the Agents for any amount then due and
payable by such Defaulting Lender to the Agents under the Loan
Documents, ratably in accordance with such respective amounts then due
and payable to the Agents;
(ii) second, to any other Lender Parties for any amount
then due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective amounts
then due and payable to such other Lender Parties. and
(iii) third, to the Borrower for any Advance then required
to be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by
such Lender Party to the Obligations owing to such Lender Party at such time
under this Agreement and the other Loan Documents ratably in accordance with
the respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender
under this Section 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that any Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.
The obligation of each Lender to make an Advance or of any Issuing Bank to
issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in
accordance with the terms of the Purchase Agreement, without any
waiver or amendment not consented to by the Agents of any material
term, provision or condition set forth therein, and in compliance with
all applicable laws.
(b) The Purchase Agreement shall be in full force and
effect.
(c) Parent shall have received at least $375,000,000 in
Net Cash Proceeds of the sale of equity to the Equity Investors, and
such Net Cash Proceeds shall have been contributed, directly or
indirectly, to the Borrower as a capital contribution and the Borrower
shall have received $500,000,000 (less an underwriting spread of 3.5%
on the first $350,000,000 and 4.5% on the remaining $150,000,000) in
gross cash proceeds of the issuance of the Subordinated Notes.
(d) The Lender Parties shall be satisfied with the
corporate and legal structure and capitalization of each Loan Party
and each of its Subsidiaries, including the terms and conditions of
the charter, bylaws and each class of capital stock of each Loan Party
and each such Subsidiary and of each agreement or instrument relating
to such structure or capitalization.
(e) The Agents shall be satisfied that all Existing Debt,
other than the Debt identified on Schedule 3.01(e) (the "Surviving
Debt"), has been prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and that all Surviving Debt shall be on
terms and conditions satisfactory to the Lender Parties.
(f) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred
no Material Adverse Change since December 31, 1995.
(g) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any
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court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of the Acquisition, this
Agreement, any Note, any other Loan Document, any Related Document or
the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the
Lender Parties during the course of their due diligence investigation
to lead them to believe (i) that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect,
(ii) that, following the consummation of the Acquisition, the Borrower
and its Subsidiaries would not have good and marketable title to all
material assets of the Company and its Subsidiaries reflected in the
Information Memorandum (other than those disposed of in the ordinary
course of business) and (iii) that the Acquisition will have a
Material Adverse Effect; without limiting the generality of the
foregoing, the Agents shall have been given such access to the
management, records, books of account, contracts and properties of the
Loan Parties and their Subsidiaries as they shall have requested.
(i) All governmental and third party consents and
approvals necessary in connection with the Acquisition, the Loan
Documents and the Related Documents and the transactions contemplated
thereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Agents) and shall
remain in effect other than such governmental or third party consents
and approvals the failure to obtain which shall not (x) be materially
adverse to Holdings or the Borrower, in each case together with its
respective Subsidiaries, taken as a whole, (y) affect the
enforceability, validity or binding effect of any of the Loan
Documents required to be executed and delivered prior to or on the
First Closing Date or (z) expose the Arrangers, the Agents or the
Lender Parties to personal liability; provided, however, that with
respect to the receipt of licenses to sell or serve alcoholic
beverages or to engage in gaming, lottery or gambling activities (or
the necessary consents or approvals with respect thereto), such
condition shall be satisfied if the Agents are reasonably satisfied
that licenses have been obtained or that other appropriate mechanisms
which will not result in denial or loss of a license or penalties
(other than immaterial civil penalties) or put the Borrower or its
Subsidiaries at risk of an enforcement action for a violation are in
place and, in each case, are expected to remain in place for the
foreseeable future without material risk or expectation of losing such
ability in the future (other than the risk that any holder of a liquor
license or a gaming, lottery or gambling license that complies with
the terms and requirements of such license and the relevant law
generally bears of nonrenewal) so that after the First Closing Date,
alcoholic beverages can continue to be sold or served and gaming
activities can continue to be conducted in essentially the same manner
and on essentially the same terms (and without any additional material
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restrictions) as before the First Closing Date and in compliance in
all material respects with all applicable laws and rules, regulations,
statutes, licenses and orders of any governmental authority relating
to the sale or service of alcoholic beverages or engaging in gaming,
lottery and gambling activities at bowling centers (or related
premises) which would reasonably be expected to enable the Borrower
and its Subsidiaries to derive, during a 10-month period beginning on
the First Closing Date, at least 90% of the total revenues from the
sale and/or service of alcoholic beverages and, other than in the
State of Washington, gaming, lottery and gambling activities (and
from any related management service agreements and leases) during the
10-month period ended October 31, 1995; all applicable waiting periods
shall have expired without any action being taken by any competent
authority; and no law or regulation shall be applicable in the
judgment of the Agents that restrains, prevents or imposes materially
adverse conditions upon the Acquisition, the Loan Documents and the
Related Documents and the transactions contemplated thereby,
(j) The Agents shall be satisfied with all contractual
and other arrangements with the Borrower's management.
(k) All capital stock of the Borrower shall be owned by
Holdings, all capital stock of Holdings shall be owned by Parent and
all capital stock of Parent shall be owned by the Equity Investors,
and all of the stock of the Borrower's Subsidiaries shall be owned by
the Borrower or one or more of the Borrower's Subsidiaries, in each
case free and clear of any lien, charge or encumbrance, other than
Liens in favor of the Secured Parties.
(l) The Agents shall be satisfied that the Borrower and
its Subsidiaries will be able to meet their obligations under all
Plans, that the Borrower's and its Subsidiaries' Plans are, in all
material respects, funded in accordance with the minimum statutory
requirements, that no material "reportable event" (as defined in
ERISA, but excluding events for which reporting has been waived) has
occurred as to any such Plan and that no termination of, or withdrawal
from, any such Plan has occurred or is contemplated that could result
in a material liability.
(m) The Agents shall be satisfied (i) with the sources,
terms and conditions of the equity and the other debt financing for
the Acquisition and the other transactions contemplated by the Loan
Documents and the Related Documents, (ii) that the amount of committed
equity and debt financing shall be sufficient to meet the financing
requirements of the Acquisition and the other transactions
contemplated by the Loan Documents and the Related Documents and (iii)
that the amount of transaction fees and expenses payable in connection
with the closing of the Acquisition and the other transactions
contemplated by the Loan Documents and the
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Related Documents does not exceed the maximum amount previously
disclosed to the Initial Lenders.
(n) The Lender Parties shall have received audited
financial statements of the Borrower and its Subsidiaries for the year
ended December 31, 1995, from which financial statements shall be
derived a Consolidated pro forma EBITDA of the Borrower and its
Subsidiaries of at least $165,000,000 (as reflected in the offering
circular for the Subordinated Notes).
(o) The Borrower shall have paid all accrued fees of the
Lender Parties and all accrued fees and expenses of the Agents and the
Arrangers (including the accrued fees and expenses of counsel to the
Agents and the Arrangers and local, foreign and intellectual property
counsel to, and of other experts and advisors retained by, the Agents
for the Lender Parties).
(p) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Agents (unless otherwise specified) and (except
for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the
Lenders.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower, the Company and each other
Loan Party approving the Acquisition, this Agreement, the
Notes, each other Loan Document and each Related Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with
respect to the Acquisition, this Agreement, the Notes, each
other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the date of the Initial Extension of Credit,
listing the charter of the Borrower, the Company and each
other Loan Party and each amendment thereto on file in his
office and certifying that (A) such amendments are the only
amendments to the Borrower's, the Company's or such other Loan
Party's charter on file in his office, (B) the Borrower, the
Company and each other Loan Party have paid all franchise
taxes to the date of such certificate and (C) the Borrower,
the Company and each other Loan Party are duly incorporated
and in good standing under the laws of the jurisdiction of its
incorporation.
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(iv) A copy of a certificate of the Secretary of
State of such states as the Administrative Agent may require,
dated reasonably near the date of the Initial Extension of
Credit, stating that the Borrower, the Company and each other
Loan Party are duly qualified and in good standing as foreign
corporations in such State and have filed all annual reports
required to be filed to the date of such certificate.
(v) A certificate of the Borrower, the Company
and each other Loan Party, signed on behalf of the Borrower,
the Company and such other Loan Party by its President or a
Vice President and its Secretary or any Assistant Secretary,
dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as
of the date of the Initial Extension of Credit), certifying as
to (A) the absence of any amendments to the charter of the
Borrower, the Company or such other Loan Party since the date
of the Secretary of State's certificate referred to in Section
3.01(p)(iii), (B) a true and correct copy of the bylaws of the
Borrower, the Company and such other Loan Party as in effect
on the date of the Initial Extension of Credit, (C) the due
incorporation and good standing of the Borrower, the Company
and such other Loan Party as a corporation organized under the
laws of the state of its incorporation, and the absence of any
proceeding for the dissolution or liquidation of the Borrower,
the Company or such other Loan Party, (D) the truth of the
representations and warranties contained in the Loan Documents
as though made on and as of the date of the Initial Extension
of Credit and (E) the absence of any event occurring and
continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(vi) A certificate of the Secretary or an
Assistant Secretary of the Borrower, the Company and each
other Loan Party certifying the names and true signatures of
the officers of the Borrower, the Company and such other Loan
Party authorized to sign this Agreement, the Notes, each other
Loan Document and each Related Document to which they are or
are to be parties and the other documents to be delivered
hereunder and thereunder.
(vii) A security agreement in substantially the
form of Exhibit D hereto (together with each other security
agreement delivered or to be delivered pursuant to Section
5.01(n), in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"Security Agreement"), duly executed by the Borrower and each
other Loan Party, together with:
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(A) certificates representing the
Pledged Shares referred to therein accompanied by
undated stock powers executed in blank and
instruments evidencing the Pledged Debt referred to
therein indorsed in blank,
(B) duly executed proper financing
statements, to be filed under the Uniform Commercial
Code of all jurisdictions that the Collateral Agent
may deem necessary or desirable in order to perfect
and protect the first priority liens and security
interests created under the Security Agreement,
covering the Collateral described in the Security
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (B)
above that name the Borrower, the Company or any
other Loan Party as debtor, together with copies of
such other financing statements,
(D) evidence of the completion of all
other recordings and filings of or with respect to
the Security Agreement that the Collateral Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) evidence of the insurance required
by the terms of the Security Agreement,
(F) copies of the Assigned Agreements
referred to in the Security Agreement, together with
a consent to such assignment (to the extent required
by the terms of the Security Agreement), in
substantially the form of Exhibit B to the Security
Agreement, duly executed by each party to such
Assigned Agreements other than the Loan Parties,
(G) the Blocked Account Letters referred
to in the Security Agreement (to the extent required
by the terms of the Security Agreement), duly
executed by each Blocked Account Bank referred to in
the Security Agreement, and
(H) evidence that all other action that
the Collateral Agent may deem necessary or desirable
in order to perfect and protect the
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first priority liens and security interests created
under the Security Agreement has been taken.
(viii) An intellectual property security agreement
in substantially the form of Exhibit E hereto (together with
each other intellectual property security agreement delivered
or to be delivered pursuant to Section 5.01(n), in each case
as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Intellectual Property
Security Agreement"), duly executed by the Borrower and each
other Loan Party, together with evidence that all action that
the Collateral Agent may deem necessary or desirable in order
to perfect and protect the first priority liens and security
interests created under the Intellectual Property Security
Agreement has been taken.
(ix) Deeds of trust, trust deeds, mortgages,
leasehold mortgages and leasehold deeds of trust in
substantially the form of Exhibit F hereto and covering
properties listed on Part I of Schedule 4.01(kk) and Part I of
Schedule 4.01(ll) (together with each other mortgage delivered
or to be delivered pursuant to Section 5.01(n), in each case
as amended, supplemented or otherwise modified from time to
time in accordance with their terms, the "Mortgages"), duly
executed by the appropriate Loan Party, together with:
(A) fully paid American Land Title
Association Lender's Extended Coverage title
insurance policies (the "Mortgage Policies") in form
and substance, with endorsements and in amount
acceptable to the Collateral Agent, issued, coinsured
and reinsured by title insurers acceptable to the
Collateral Agent, insuring the Mortgages covering the
manufacturing facilities listed on Schedules 4.01(ll)
and 4.01(kk) to be valid first and subsisting Liens
on the property described therein, free and clear of
all defects (including, but not limited to,
mechanics' and materialmen's Liens) and encumbrances,
excepting only Permitted Encumbrances, and providing
for such other affirmative insurance (including
endorsements for future advances under the Loan
Documents and for mechanics' and materialmen's Liens)
and such coinsurance and direct access reinsurance as
the Collateral Agent may deem necessary or desirable,
(B) title reports, prepared by one or
more nationally recognized title insurance companies,
with respect to each of the properties covered by the
Mortgages, reflecting that such properties are free
and clear of all defects (including, but not limited
to, mechanics'
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and materialmen's Liens) and encumbrances, excepting
only Permitted Encumbrances,
(C) Surveys in form and substance
satisfactory to the Collateral Agent with respect to
the manufacturing plants located in Lowville, New
York and Richmond, Virginia, each dated no more than
30 days before the day of the Initial Extension of
Credit, certified to the Collateral Agent and the
issuer of the Mortgage Policies in a manner
satisfactory to the Collateral Agent by a land
surveyor duly registered and licensed in the States
in which the respective property described in such
surveys is located and acceptable to the Collateral
Agent, showing all buildings and other improvements,
any off-site improvements, the location of any
easements, parking spaces, rights of way, building
set-back lines and other dimensional regulations and
the absence of encroachments, either by such
improvements or on to such property, and other
defects, other than encroachments and other defects
acceptable to the Collateral Agent, and
(D) evidence of the insurance required
by the terms of the Mortgages.
(x) A guaranty in substantially the form of
Exhibit G hereto (as amended, supplemented or otherwise
modified in accordance with its terms, the "Holdings
Guaranty"), duly executed by Holdings.
(xi) A guaranty in substantially the form of
Exhibit H hereto (together with each other guaranty delivered
or to be delivered pursuant to Section 5.01(n), in each case
as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Subsidiary Guaranty"),
duly executed by the Subsidiary Guarantors.
(xii) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith.
(xiii) Such financial, business and other
information regarding each Loan Party and its Subsidiaries as
the Agents shall have requested, including, without
limitation, information as to possible contingent liabilities,
tax matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with
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employees, audited annual financial statements dated December
31, 1995, draft financial statements dated March 31, 1996 (or,
in the event the Agents' due diligence review reveals material
changes since such financial statements, as of a later date
within 45 days of the day of the Initial Extension of Credit),
annual financial statements dated December 31, 1995 reflecting
revenues and EBITDA by business segment, a business plan for
the Borrower prepared by management of the Borrower, pro forma
financial statements as to the Borrower and forecasts prepared
by management of the Borrower, in form and substance
satisfactory to the Agents, of balance sheets, income
statements and cash flow statements on an annual basis for
each year following the day of the Initial Extension of Credit
until the Termination Date for the AXELs Series B Facility.
(xiv) Letters and certificates, in substantially
the form of Exhibits I and J hereto, respectively, attesting
to the Solvency of Holdings, the Borrower and each of the
Borrower's first tier and second tier Subsidiaries (other than
any such Subsidiary the primary business of which is to hold
liquor licenses) after giving effect to the Acquisition and
the other transactions contemplated hereby, from a Designated
Financial Officer and Houlihan Lokey Howard & Zukin.
(xv) An environmental assessment report, in form
and substance satisfactory to the Lender Parties, from Dames &
Moore, as to any risks, costs or liabilities under
Environmental Laws to which any Loan Party or any of its
Subsidiaries may be subject, the amount and nature of which
and the Borrower's plans with respect to which shall be
acceptable to the Lender Parties, together with evidence, in
form and substance satisfactory to the Lender Parties, that
all applicable Environmental Laws shall have been materially
complied with.
(xvi) A letter, in form and substance satisfactory
to the Administrative Agent, from the Borrower to Arthur
Andersen, L.L.P., its independent certified public
accountants, advising such accountants that the Administrative
Agent and the Lender Parties have been authorized to exercise
all rights of the Borrower to require such accountants to
disclose any and all financial statements and any other
information of any kind that they may have with respect to the
Borrower and its Subsidiaries and directing such accountants
to comply with any reasonable request of the Administrative
Agent or any Lender Party for such information.
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(xvii) Evidence of insurance naming the Collateral
Agent for the benefit of the Secured Parties as insured and
loss payee with such responsible and reputable insurance
companies or associations, and in such amounts and covering
such risks, as is satisfactory to the Collateral Agent.
(xviii) Certified copies of each employment
agreement and other compensation arrangement with each
executive officer of any Loan Party or any of its
Subsidiaries.
(xix) A favorable opinion of Wachtell, Lipton,
Rosen & Katz, counsel for the Loan Parties, in substantially
the form of Exhibit K hereto and as to such other matters as
any Lender Party through the Administrative Agent may
reasonably request.
(xx) A favorable opinion of local counsel listed
on Schedule 3.01(p)(xx), in the jurisdictions listed on
Schedule 3.01(p)(xx), in form and substance satisfactory to
the Administrative Agent and as to such other matters as any
Lender Party through the Administrative Agent may reasonably
request.
(xxi) A favorable opinion of Pennie & Edmonds,
intellectual property counsel to the Lender Parties, in
substantially the form of Exhibit L hereto and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xxii) A favorable opinion of Shearman & Sterling,
counsel for the Arrangers and the Agents, in form and
substance satisfactory to the Arrangers and the Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Working Capital
Lender pursuant to Section 2.03(c)) on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of each Issuing Bank to
issue a Letter of Credit (including the initial issuance), shall be subject to
the further conditions precedent that on the date of such Borrowing or issuance
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing or Notice of Issuance and the acceptance by the
Borrower of the proceeds of such Borrowing or of such Letter of Credit shall
constitute a representation and warranty by the Borrower that both on the date
of such notice and on the date of such Borrowing or issuance such statements
are true):
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(i) the representations and warranties contained in
each Loan Document are correct on and as of such date, before and
after giving effect to such Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and as of
such date;
(ii) no event has occurred and is continuing, or
would result from such Borrowing or issuance or from the application
of the proceeds therefrom, that constitutes a Default; and
(iii) in the case of any Working Capital Borrowing the
proceeds of which are to be used to make an acquisition or to
refinance the costs of construction of a New Center or any
Acquisition Borrowing or Acquisition B Borrowing, (A) after giving
effect to the acquisition to be made, or costs of construction to be
refinanced, with the proceeds of such Borrowing, the Borrower shall
be in pro forma compliance with the covenants contained in Section
5.04, calculated based on the most recent Financial Statements (and
including, for purposes of determining such pro forma compliance, the
Debt and Modified Consolidated EBITDA attributable to the bowling
center being so acquired or refinanced as though such acquisition or
construction had occurred at the beginning of the 12-month period
covered by such Financial Statements), (B) the amount of such Working
Capital Borrowing to be applied to make an acquisition or refinance
the costs of construction of a New Center or the amount of such
Acquisition Borrowing or Acquisition B Borrowing or, if the amount of
the proceeds of such Borrowing to be applied to such acquisition or
refinancing shall be less than $1,000,000, such lesser amount, shall
not exceed an amount equal to the product of (x) 4.5, (y) Specified
Revenues and (z) the Average EBITDA Margin, and (C) the Borrower
shall have delivered a certificate to the Administrative Agent and
the Lender Parties in form satisfactory to the Administrative Agent
demonstrating compliance with clauses (A) and (B) above; provided,
however, that if such Advance is an Acquisition Borrowing made solely
for the purposes of acquiring American Recreation Centers, a Delaware
corporation, prior to July 31, 1997, the foregoing subsections (B)
and (C) shall not apply;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative
Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Administrative Agent
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82
responsible for the transactions contemplated by the Loan Documents shall have
received notice from such Lender Party prior to the Initial Extension of Credit
specifying its objection thereto and if the Initial Extension of Credit
consists of a Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
SECTION 3.04. Conditions Precedent to the Making of
the New AXELs Series B Advances. The obligation of each New AXELs Series B
Lender to make a New AXELs Series B Advance hereunder is subject to the
satisfaction of the following conditions precedent before or concurrently with
the making of such New AXELs Series B Advance:
(a) Before and after giving effect to Amendment No. 3
and the transactions contemplated thereby, there shall have occurred
no Material Adverse Change since December 31, 1995.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note, any other
Loan Document, any Amendment Document, any Related Document or the
consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and
approvals necessary in connection with the Amendment Documents and
the transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Agents) and shall remain in effect other than such
governmental or third party consents and approvals the failure to
obtain which shall not (x) be materially adverse to Holdings or the
Borrower, in each case together with its respective Subsidiaries,
taken as a whole, (y) affect the enforceability, validity or binding
effect of any of the Amendment Documents required to be executed and
delivered prior to or on the Second Closing Date or (z) expose the
Arrangers, the Agents or the Lender Parties to personal liability;
and no law or regulation shall be applicable in the judgment of the
Agents that restrains, prevents or imposes materially adverse
conditions upon the Amendment Documents and the transactions
contemplated thereby.
(d) The Borrower shall have paid all accrued fees of
the Lender Parties and all accrued fees and expenses of the Agents
and the Arrangers (including the accrued fees and expenses of counsel
to the Agents and the Arrangers and local counsel to, and of other
experts and advisors retained by, the Agents for the Lender Parties).
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83
(e) The Administrative Agent shall have received on or
before the day of the making of the New AXELs Series B Advances the
following, each dated such day (unless otherwise specified), in form
and substance satisfactory to the Agents (unless otherwise specified)
and (except for the AXELs Series B Notes) in sufficient copies for
each Lender Party:
(i) AXELs Series B Notes payable to the
order of the New AXELs Series B Lenders.
(ii) Certified copies of the resolutions of
the Board of Directors of the Borrower and each other Loan
Party approving this Agreement, the New AXELs Series B
Notes, each other Amendment Document to which it is or is
to be a party, and of all documents evidencing other
necessary corporate action and governmental and other third
party approvals and consents, if any, with respect to this
Agreement, the AXELs Series B Notes and each other
Amendment Document.
(iii) A copy of a certificate of the Secretary
of State of the jurisdiction of its incorporation, dated
reasonably near the Second Closing Date, certifying that
(A) the Borrower and each other Loan Party have paid all
franchise taxes to the date of such certificate and (B) the
Borrower and each other Loan Party are duly incorporated
and in good standing under the laws of the jurisdiction of
its incorporation.
(iv) A copy of a certificate of the Secretary
of State or Commonwealth, as the case may be, of the State
of New York and the Commonwealth of Virginia, dated
reasonably near the Second Closing Date, stating that the
Borrower and each other Loan Party that was so qualified as
of the First Closing Date are duly qualified and in good
standing as foreign corporations in such States and have
filed all annual reports required to be filed to the date
of such certificate.
(v) A certificate of the Borrower and each
other Loan Party, signed on behalf of the Borrower and such
other Loan Party by its President or a Vice President and
its Secretary or any Assistant Secretary, dated the Second
Closing Date (the statements made in which certificate
shall be true on and as of the Second Closing Date),
certifying as to (A) the absence of any amendments to the
charter of the Borrower or such other Loan Party since the
date of the Secretary of State's certificate referred to in
Section 3.01(p)(iii), (B) the absence of any amendments to
the bylaws of the Borrower or such other Loan Party
delivered pursuant to Section 3.01(p)(v), (C) the due
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incorporation and good standing of the Borrower and such
other Loan Party as a corporation organized under the laws
of the state of its incorporation, and the absence of any
proceeding for the dissolution or liquidation of the
Borrower or such other Loan Party, (D) the truth of the
representations and warranties contained in the Loan
Documents as though made on and as of the Second Closing
Date and (E) the absence of any event occurring and
continuing, or resulting from the making of the New AXELs
Series B Advances, that constitutes a Default.
(vi) A certificate of the Secretary or an
Assistant Secretary of the Borrower and each other Loan
Party certifying the names and true signatures of the
officers of the Borrower and such other Loan Party
authorized to sign Amendment No. 3, the AXELs Series B
Notes and each other Amendment Document to which they are
or are to be parties and the other documents to be
delivered hereunder and thereunder.
(vii) Amendments to the Mortgages in
substantially the form of Exhibit M hereto and covering the
properties listed on Part I of Schedule 4.01(kk) and Part I
of Schedule 4.01(ll) (the "Mortgage Amendments"), duly
executed by the appropriate Loan Party.
(viii) A favorable opinion of Wachtell, Lipton,
Rosen & Katz, special counsel for the Loan Parties, in
substantially the form of Exhibit N hereto and as to such
other matters as any Lender Party through the
Administrative Agent may reasonably request.
(ix) A favorable opinion of Daniel McCormack,
General Counsel of the Borrower, in substantially the form
of Exhibit O hereto and as to such other matters as any
Lender Party through the Administrative Agent may
reasonably request.
(x) A favorable opinion of local counsel in
the Commonwealth of Virginia, in form and substance
satisfactory to the Administrative Agent and as to such
other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xi) A favorable opinion of Shearman &
Sterling, counsel for the Arrangers and the Agents, in form
and substance satisfactory to the Arrangers and the Agents.
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SECTION 3.05. Conditions Precedent to the Effectiveness of
Section 2.01(f). Section 2.01(f) of this Agreement shall become effective on
and as of the Third Closing Date on which the following conditions precedent
shall have been satisfied:
(a) Before and after giving effect to Amendment No. 2
and the transactions contemplated thereby, there shall have occurred
no Material Adverse Change since December 31, 1996.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect legality, validity
or enforceability of this Agreement, any Note, any other Loan
Document, any Second Amendment Document, any Related Document or the
consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and
approvals necessary in connection with the Second Amendment Documents
and the transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Agents) and shall remain in effect other than such
governmental or third party consents and approvals the failure to
obtain which shall not (x) be materially adverse to Holdings or the
Borrower, in each case together with its respective Subsidiaries,
taken as a whole, (y) affect the enforceability, validity or binding
effect of any of the Second Amendment Documents required to be
executed and delivered prior to or on the Third Closing Date or (z)
expose the Arrangers, the Agents or the Lender Parties to personal
liability; and no law or regulation shall be applicable in the
judgment of the Agents that restrains, prevents or imposes materially
adverse conditions upon the Second Amendment Documents and the
transactions contemplated thereby.
(d) The Borrower shall have paid all accrued fees of
the Lender Parties and all accrued fees and expenses of the Agents
and the Arrangers (including the accrued fees and expenses of counsel
to the Agents and the Arrangers and local counsel to, and of other
experts and advisors retained by, the Agents for the Lender Parties).
(e) The Administrative Agent shall have received on or
before the Third Closing Date the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to
the Agents (unless otherwise specified) and (except for the
Acquisition B Notes) in sufficient copies for each Lender Party:
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(i) Acquisition B Notes payable to the order of the
Acquisition B Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower and each other Loan Party approving this
Agreement, the Acquisition B Notes, each other Second Amendment
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental and
other third party approvals and consents, if any, with respect to
this Agreement, the Acquisition B Notes and each other Second
Amendment Document.
(iii) A copy of a certificate of the Secretary of State
of the jurisdiction of its incorporation, dated reasonably near the
Third Closing Date, certifying that (A) the Borrower has paid all
franchise taxes to the date of such certificate and (B) the Borrower
is duly incorporated and in good standing under the laws of the
jurisdiction of its incorporation.
(iv) A copy of a certificate of the Secretary of State
of the State of New York, dated reasonably near the Third Closing
Date, stating that each Loan Party that was so qualified as of the
First Closing Date is duly qualified and in good standing as foreign
corporations in such State and has filed all annual reports required
to be filed to the date of such certificate.
(v) A certificate of the Borrower and each other Loan
Party, signed on behalf of the Borrower and such other Loan Party by
its President or a Vice President and its Secretary or any Assistant
Secretary, dated the Third Closing Date (the statements made in which
certificate shall be true on and as of the Third Closing Date),
certifying as to (A) the absence of any amendments to the charter of
the Borrower or such other Loan Party since the date of the Secretary
of the State certificate referred to in Section 3.01(p)(iii), (B) the
absence of any amendments to the bylaws of the Borrower or such other
Loan Party delivered pursuant to Section 3.01(p)(v), (C) the due
incorporation and good standing of the Borrower and such other Loan
Party as a corporation organized under the laws of the state of its
incorporation, and the absence of any proceeding for the dissolution
or liquidation of the Borrower or such other Loan Party, (D) the
truth of the representations and warranties contained in the Loan
Documents as though made on and as of the Third Closing Date and (E)
the absence of any event occurring and continuing, or resulting from
the making of the Acquisition B Advances, that constitutes a Default.
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(vi) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying the
names and true signatures of the officers of the Borrower and such
other Loan Party authorized to sign Amendment No. 2, the Acquisition
B Notes and each other Second Amendment Document to which they are or
are to be parties and the other documents to be delivered hereunder
and thereunder.
(vii) With respect to each state in which Mortgages have
been filed, either:
(A) an opinion of local counsel acceptable
to the Administrative Agent to the effect that, after
giving effect to this Agreement and the transactions
contemplated hereby, the Mortgages which have been filed in
such state (1) remain the legal, valid and binding
obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with their terms, (2)
constitute valid mortgage liens and security interests in
the real property and fixtures described therein, and (3)
that no amendments to such Mortgages are required to
perfect and maintain the validity, effectiveness and
priority of any of the Mortgages filed in such state and
the mortgage liens and security interests intended to be
created thereunder, or
(B) amendments to the Mortgages in
substantially the form of Exhibit P hereto and covering the
properties located in such state and listed on Schedule
4.01(kk) and Schedule 4.01(ll) (the "Second Mortgage
Amendments"), duly executed by the appropriate Loan Party.
(viii) A favorable opinion of Wachtell, Lipton, Rosen &
Katz, special counsel for the Loan Parties, in substantially the form
of Exhibit Q hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(ix) A favorable opinion of local counsel in each of
the Commonwealth of Virginia and the States of Colorado, Maryland,
Texas and California, in form and substance satisfactory to the
Administrative Agent and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(x) A favorable opinion of Shearman & Sterling,
counsel for the Arrangers and the Agents, in form and substance
satisfactory to the Arrangers and the Agents.
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SECTION 3.06. Determinations Under Sections 3.04 and 3.05. For
purposes of determining compliance with the conditions specified in Sections
3.04 and 3.05, each Appropriate Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Appropriate Lenders unless an officer of the Administrative
Agent responsible for the transactions contemplated by the Loan Documents shall
have received notice from such Lender Party prior to the making of the New
AXELs Series B Advances or the Third Closing Date, as the case may be,
specifying its objection thereto and, in the case of Section 3.04, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such AXELs Series B Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, (ii) is duly qualified and in
good standing as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed could not be reasonably likely
to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. All of the outstanding
capital stock of Parent, Holdings and the Borrower has been validly
issued, is fully paid and non-assessable and, as of the First Closing
Date, is owned by the Equity Investors in the amounts specified on
Schedule 4.01(a) or by Parent or Holdings, as the case may be. All
of the outstanding capital stock of Parent is owned, as of the First
Closing Date, free and clear of all Liens, except the pledge of such
capital stock as is owned by management of the Borrower to secure
obligations of such management owing to Parent. All of the
outstanding capital stock of Holdings and the Borrower is owned, in
each case free and clear of all Liens, except, in the case of the
capital stock of the Borrower, those created under the Collateral
Documents.
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(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party, showing as
of the First Closing Date (as to each such Subsidiary) the
jurisdiction of its incorporation, the number of shares of each class
of capital stock authorized, and the number outstanding, on the First
Closing Date and the percentage of the outstanding shares of each
such class owned (directly or indirectly) by such Loan Party and the
number of shares covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the First Closing
Date. All of the outstanding capital stock of all of such
Subsidiaries has been validly issued and is fully paid and
non-assessable; and such capital stock (other than directors'
qualifying shares), as of the First Closing Date, is owned by such
Loan Party or one or more of its Subsidiaries, other than the China
Joint Venture, the capital stock of which is owned by a Loan Party or
one or more of its Subsidiaries in the amount and percentage
ownership set forth on Schedule 4.01(b) hereto. All of such
outstanding capital stock to the extent owned by a Loan Party is
owned in each case free and clear of all Liens, except those created
under the Loan Documents. Each such Subsidiary (i) is a corporation
duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (ii) is duly qualified and
in good standing as a foreign corporation in each other jurisdiction
in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed could not be reasonably likely
to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each
Loan Party of this Agreement, the Notes, each other Loan Document and
each Related Document to which it is or is to be a party (after the
execution and delivery thereof as and when required under this
Agreement), and the consummation of the Acquisition and the other
transactions contemplated hereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter
or bylaws, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934 and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of
1970), rule, regulation (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award, (iii)
conflict with or result in the breach of, or constitute a default
under, any loan agreement, indenture, mortgage, deed of trust or
other instrument or material contract or material lease binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of
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any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument, the violation or breach of
which could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan
Party of this Agreement, the Notes, any other Loan Document or any
Related Document to which it is or is to be a party, or for the
consummation of the Acquisition or the other transactions
contemplated hereby, (ii) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created by the Collateral
Documents (including the first priority nature thereof) or (iv) the
exercise by any Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(d)
hereto, all of which have been duly obtained, taken, given or made
and are in full force and effect except as otherwise set forth on
Schedule 4.01(d) hereto and except those authorizations, approvals,
actions, notices and filings the failure to obtain, take, give or
make which, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect. All
applicable waiting periods in connection with the Acquisition and the
other transactions contemplated hereby have expired or been
terminated without any action having been taken by any competent
authority restraining, preventing or imposing materially adverse
conditions upon the Acquisition or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by
any of them except where, in the case of any such waiting period
other than any waiting period required under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, the failure of such
waiting period to have expired without any such action having been
taken could not be reasonably likely to have a Material Adverse
Effect.
(e) This Agreement has been, and each of the Notes,
each other Loan Document and each Related Document when delivered
hereunder will have been, duly executed and delivered by each Loan
Party party thereto. This Agreement is, and each of the Notes, each
other Loan Document and each Related Document when delivered
hereunder will be, the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms.
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(f) (i) The Consolidated balance sheet of the Company
and its Subsidiaries as at December 31, 1996, and the related
Consolidated statements of income and cash flows of the Company and
its Subsidiaries for the fiscal year then ended, accompanied by an
opinion of Price Waterhouse, independent public accountants, copies
of which have been furnished to each Lender Party, fairly present the
Consolidated financial condition of the Company and its Subsidiaries
as at such date and the Consolidated results of the operations of the
Company and its Subsidiaries for the period ended on such date, all
in accordance with generally accepted accounting principles applied
on a consistent basis, and since December 31, 1996, there has been no
Material Adverse Change.
(ii) The Consolidated balance sheets of the
Borrower and its Subsidiaries as at March 30, 1997, and the
related Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the three months then
ended, certified by a Designated Financial Officer, copies
of which have been furnished to each Lender Party, fairly
present, subject to year-end audit adjustments, the
Consolidated financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated results
of operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally
accepted accounting principles applied on a consistent
basis.
(g) The Consolidated pro forma balance sheet of the
Borrower and its Subsidiaries as at December 31, 1995, and the
related Consolidated pro forma statements of income and cash flows of
the Borrower and its Subsidiaries for the year then ended, certified
by a Designated Financial Officer, copies of which have been
furnished to each Lender Party, fairly present the Consolidated pro
forma financial condition of the Borrower and its Subsidiaries as at
such date and the Consolidated pro forma results of operations of the
Borrower and its Subsidiaries for the period ended on such date, in
each case giving effect to the Acquisition and the other transactions
contemplated hereby, all in accordance with GAAP.
(h) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(p)(xiii) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in the light
of conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's best estimate of
its future financial performance.
(i) Neither the Information Memorandum nor any other
information, exhibit or report furnished by any Loan Party to any
Agent or any Lender Party in
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connection with the negotiation and syndication of the Loan Documents
or pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(j) There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or
threatened before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of
the Acquisition, this Agreement, any Note, any other Loan Document or
any Related Document or the consummation of the transactions
contemplated hereby (other than any such action, suit, investigation,
litigation or proceeding that, in the judgment of the Agents, is
frivolous).
(k) No proceeds of any Advance or drawings under any
Letter of Credit will be used to acquire any equity security of a
class that is registered pursuant to Section 12 of the Securities
Exchange Act of 1934.
(l) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance or drawings under any Letter of
Credit will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
(m) Set forth on Schedule 4.01(m) hereto is a complete
and accurate list, as of the First Closing Date, of all Plans,
Multiemployer Plans and Welfare Plans.
(n) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that could be reasonably
expected to have a Material Adverse Effect.
(o) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in Section
302(d)(8) of ERISA, of each Plan exceeds 90% and there has been no
material adverse change in the funding status of such Plan since such
date.
(p) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) for each Plan, copies of
which have been filed with the Internal Revenue Service and furnished
to the Lender Parties, is complete and accurate and fairly presents
the funding status of such Plan, and since the date of such Schedule
B there has been no material adverse change in such funding status.
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(q) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
to any Multiemployer Plan that could be reasonably expected to have a
Material Adverse Effect.
(r) Neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated,
within the meaning of Title IV of ERISA, and no such Multiemployer
Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA, except to the
extent that any such reorganization or termination could not be
reasonably expected to have a Material Adverse Effect.
(s) With respect to each scheme or arrangement
mandated by a government other than the United States (a "Foreign
Government Scheme or Arrangement") and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any
Subsidiary of any Loan Party that is not subject to United States law
(a "Foreign Plan") to the extent that there could reasonably be
expected to be a Material Adverse Effect:
(i) Any employer and employee contributions
required by law or by the terms of any Foreign Government
Scheme or Arrangement or any Foreign Plan have been made,
or, if applicable, accrued, in accordance with normal
accounting practices.
(ii) The fair market value of the assets of
each funded Foreign Plan, the liability of each insurer for
any Foreign Plan funded through insurance or the book
reserve established for any Foreign Plan, together with any
accrued contributions, is sufficient to procure or provide
for the accrued benefit obligations, as of the First
Closing Date, with respect to all current and former
participants in such Foreign Plan according to the
actuarial assumptions and valuations most recently used to
determine employer contributions to such Foreign Plan.
(iii) Each Foreign Plan required to be
registered has been registered and has been maintained in
good standing with applicable regulatory authorities.
(t) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.03, the Loan
Parties and their respective Subsidiaries have no material liability
with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
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(u) Neither the business nor the properties of any
Loan Party or any of its Subsidiaries have been affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy
or other casualty (whether or not covered by insurance) that could be
reasonably likely to have a Material Adverse Effect.
(v) Except as set forth on Schedule 4.01(v) hereto or
as could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, the operations and properties
of each Loan Party and each of its Subsidiaries comply with all
applicable Environmental Laws and Environmental Permits, and (except
as aforesaid) all past non-compliance with such Environmental Laws
and Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that could be
reasonably likely to (i) form the basis of an Environmental Action
against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause
any such property to be subject to any material restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(w) Except as set forth on Schedule 4.01(w) hereto or
as could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, (i) none of the properties
currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best knowledge of any Loan Party or any of
its Subsidiaries, none of the properties formerly owned or operated
by any of them, is listed or proposed for listing on the NPL or on
the CERCLIS or any analogous foreign, state or local list or is
adjacent to any such property; (ii) there are no and never have been
any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its
Subsidiaries; (iii) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan
Party or any of its Subsidiaries; and (iv) Hazardous Materials have
not been released, discharged or disposed of on any property
currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries.
(x) Except as set forth on Schedule 4.01(x) hereto or
as could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, neither any Loan Party nor any
of its Subsidiaries is undertaking or has failed to complete, either
individually or together with other potentially responsible parties,
any investigation or assessment or remedial or response action
relating to any actual
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or threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to
the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries, and that have been disposed of
in any manner, have been disposed of only in a manner not reasonably
expected to result in a Material Adverse Effect.
(y) Neither any Loan Party nor any of its Subsidiaries
is a party to any indenture, loan or credit agreement or any lease or
other agreement or instrument or subject to any charter or corporate
restriction that could be reasonably likely to have a Material
Adverse Effect.
(z) The Collateral Documents create a valid and
perfected first priority security interest in the Collateral subject
only to Permitted Encumbrances, securing the payment of the Secured
Obligations (as defined in the Collateral Documents), and all filings
and other actions necessary or desirable to perfect and protect such
security interest have been duly taken. The Loan Parties are the
legal and beneficial owners of the Collateral free and clear of any
Lien, except for the liens and security interests created or
permitted under the Loan Documents.
(aa) Each Loan Party and each of its Subsidiaries has
filed, has caused to be filed or has been included in all federal
income and other material tax returns (Federal, state, local and
foreign) required to be filed and has paid all income and other
material taxes shown thereon to be due, together with applicable
interest and penalties.
(bb) Set forth on Schedule 4.01(bb) hereto is a
complete and accurate list, as of the First Closing Date, of each
taxable year of each Loan Party and each of its Subsidiaries for
which Federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"Open Year").
(cc) As of the First Closing Date, there are no
adjustments to the Federal income tax liability of each Loan Party
and each of its Subsidiaries proposed by the Internal Revenue Service
with respect to Open Years that, individually or in the aggregate,
could be reasonably likely to have a Material Adverse Effect. No
issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, could be reasonably likely to have
a Material Adverse Effect.
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(dd) As of the First Closing Date, there are no
adjustments to the state, local and foreign tax liability of each
Loan Party and its Subsidiaries proposed by all state, local and
foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns) that, individually or in
the aggregate, could be reasonably likely to have a Material Adverse
Effect. No issues have been raised by such taxing authorities that,
in the aggregate, could be reasonably likely to have a Material
Adverse Effect.
(ee) The Acquisition will not result in the imposition
of federal income taxes on or with respect to the Borrower.
(ff) Except as a direct result of the Acquisition and
the acquisition by AMF Bowling Centers of the companies set forth on
Schedule 4.01(ff) hereto, no "ownership change" as defined in Section
382(g) of the Internal Revenue Code, and no event that would result
in the application of the "separate return limitation year" or
"consolidated return change of ownership" limitations under the
Federal income tax consolidated return regulations, has occurred with
respect to the Borrower or the Company since May 1, 1993.
(gg) Neither any Loan Party nor any of its Subsidiaries
is an "investment company," or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of
any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated hereby, will
violate any provision of such Act or any rule, regulation or order of
the Securities and Exchange Commission thereunder.
(hh) Each Loan Party is, individually and together with
its Subsidiaries, Solvent.
(ii) Set forth on Schedule 4.01(ii) hereto is a
complete and accurate list of all Existing Debt (other than Surviving
Debt), showing as of the First Closing Date the principal amount
outstanding thereunder.
(jj) Set forth on Schedule 3.01(e) hereto is a complete
and accurate list of all Surviving Debt, showing as of the First
Closing Date the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor.
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(kk) Set forth on Schedule 4.01(kk) hereto is a
complete and accurate list of all real property owned by any Loan
Party or any of its Subsidiaries, showing as of the First Closing
Date the street address, county or other relevant jurisdiction,
state, record owner and book value thereof. Each Loan Party or such
Subsidiary has good, marketable and insurable fee simple title to
such real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.
(ll) Set forth on Schedule 4.01(ll) hereto is a
complete and accurate (in the case of leases of real property outside
the United States, in all material respects) list of all leases of
real property under which any Loan Party or any of its Subsidiaries
is the lessee, showing as of the First Closing Date the street
address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. Each such
lease is the legal, valid and binding obligation of the lessee
thereof, enforceable in accordance with its terms.
(mm) Set forth on Schedule 4.01(mm) hereto is a
complete and accurate list of all Investments held by any Loan Party
or any of its Subsidiaries, showing as of the First Closing Date the
amount, obligor or issuer and maturity, if any, thereof.
(nn) Set forth on Schedule 4.01(nn) hereto is a
complete and accurate list of all patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and
licenses thereof, of each Loan Party or any of its Subsidiaries,
showing as of the First Closing Date the jurisdiction in which
registered, the registration number, the date of registration and the
expiration date, and the Loan Parties and their Subsidiaries own or
have a license to use all patents, trademarks, trade names, service
marks and copyrights reasonably necessary to carry on their business
as now conducted and as proposed to be conducted.
(oo) The Debt of the Loan Parties under the Loan
Documents constitutes "Senior Debt" as such term is defined in the
Subordinated Notes Indentures.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender Party shall have any Commitment hereunder, the Borrower will:
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(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970, except, in any case, where the failure so to
comply, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect and would not
be reasonably likely to subject any Loan Party or any of its
Subsidiaries to any criminal penalties or any Lender Party to any
civil or criminal penalties.
(b) Payment of Taxes Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all federal income and other material
taxes, assessments and governmental charges or levies imposed upon it
or upon its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim (x) that
is being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained or (y) in respect of
which the Lien resulting therefrom, if any, attaches to its property
and becomes enforceable against its other creditors, to the extent
that the aggregate amount of all such taxes, assessments, charges or
claims does not exceed $3,000,000.
(c) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all Environmental Laws and Environmental Permits;
obtain and renew and cause each of its Subsidiaries to obtain and
renew, when legally required, all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any required investigation, study, sampling
and testing, and undertake any required cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials
from any of its properties, only in accordance with the requirements
of all Environmental Laws; except, in any case under this subsection
(c), where the failure to so comply with or perform any of the
foregoing, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect and would not
be reasonably likely to subject any Loan Party or any of its
Subsidiaries to any criminal penalties or any Lender Party to any
civil or criminal penalties; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with
respect to such circumstances.
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(d) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its existence, legal structure, legal name, rights (charter
and statutory), permits, licenses, approvals, privileges and
franchises; provided, however, that the Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(d); provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right, permit,
license, approval, privilege or franchise if the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such
Subsidiary or the Lender Parties or, with respect to permits,
licenses, approvals, privileges and franchises, that the loss thereof
could not be reasonably expected to have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and
from time to time, permit any Agent or any of the Lender Parties or
any agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and with
their independent certified public accountants.
(g) Preparation of Environmental Reports. At the
request of the Administrative Agent upon the occurrence and during
the continuance of a Default or upon the reasonable belief of the
Required Lenders or the Administrative Agent that Hazardous Materials
contamination of a nature or to an extent not set forth on Schedule
4.01(v), 4.01(w) or 4.01(x) hereto may be present on any property
described in the Mortgages in a manner or condition that could
reasonably be expected to have a Material Adverse Effect, provide to
the Lender Parties within 60 days after such request, at the expense
of the Borrower, an environmental site assessment report for any of
its or its Subsidiaries' properties described in the Mortgages,
prepared by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the
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foregoing, if the Required Lenders reasonably determine at any time
that a material risk exists that any such report will not be provided
within the time referred to above, the Required Lenders may retain an
environmental consulting firm to prepare such report at the expense
of the Borrower, and the Borrower hereby grants and agrees to cause
any Subsidiary that owns any property described in the Mortgages to
grant at the time of such request, to the Agents, the Under Parties,
such firm and any agents or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter
onto their respective properties to undertake such an assessment at
any reasonable time and upon reasonable prior notice.
(h) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(i) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary
wear and tear excepted, except where the failure to do so, either
individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
(j) Compliance with Terms of Leaseholds. Make all
payments and otherwise perform all obligations in respect of all
leases of real property to which the Borrower or any of its
Subsidiaries is a party, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or any rights to
renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such
leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so,
except, in any case, where the failure to do so, either individually
or in the aggregate, could not be reasonably expected to have a
Material Adverse Effect.
(k) Performance of Related Documents. Perform and
observe all of the terms and provisions of each Related Document to
be performed or observed by it, maintain each such Related Document
in full force and effect, enforce such Related Document in accordance
with its terms (other than Section 1.5 of the Stockholders'
Agreement), take all such action to such end as may be from time to
time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Related
Document such demands and requests for information and reports or for
action as the Borrower is entitled to make under such Related
Document, and cause each of its Subsidiaries to do so, except, in any
case,
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where the failure to do so, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse Effect.
(l) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates on
terms that are fair and reasonable and no less favorable to the
Borrower or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, other than
transactions between or among Loan Parties and other transactions
described on Schedule 5.01(l) hereto.
(m) Cash Concentration Accounts. Maintain main cash
concentration accounts with Citibank and Blocked Accounts into which
substantially all proceeds of Collateral are paid with Citibank or
one or more banks acceptable to the Collateral Agent that have
accepted the assignment of such accounts to the Collateral Agent for
the benefit of the Secured Parties pursuant to the Security
Agreement.
(n) Covenant to Guarantee Obligations and Give
Security. At any time (x) upon the request of the Collateral Agent
following the occurrence and during the continuance of a Default, (y)
at such time as any new direct or indirect Subsidiaries of the
Borrower are formed or acquired by any Loan Party or (z) any property
is acquired by any Loan Party, in each case at the expense of the
Borrower:
(i) within 10 days after such request,
formation or acquisition, cause each such Subsidiary (other
than any Foreign Subsidiary), and cause each direct and
indirect parent (other than the Borrower and any Foreign
Subsidiary) of such Subsidiary (if it has not already done
so), to duly execute and deliver to the Collateral Agent a
guaranty, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties'
Obligations under the Loan Documents,
(ii) within 10 days after such request,
formation or acquisition, furnish to the Collateral Agent
a description of the real and personal properties of the
Borrower and its Subsidiaries in detail satisfactory to the
Collateral Agent,
(iii) within 15 days after such request,
formation or acquisition, duly execute and deliver, and
cause each such Subsidiary (other than any Foreign
Subsidiary) and each direct and indirect parent of such
Subsidiary (if it has not already done so) (other than any
Foreign Subsidiary except to the extent permitted in the
fourth proviso below) to duly execute and deliver, to the
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Collateral Agent mortgages, pledges, assignments and other
security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the Borrower, such Subsidiary or such parent, as
the case may be, under the Loan Documents and constituting Liens
on all such properties; provided that with respect to any
leasehold, the Borrower shall use, and shall cause its
Subsidiaries to use, best efforts to acquire such leasehold in a
way such that consent of the landlord thereof shall not be
required in connection with the mortgaging thereof; provided
further, however, that such leasehold shall not be required to be
mortgaged if, after the applicable Loan Party has used its best
efforts as set forth in the immediately preceding proviso and to
obtain landlord consents to the extent required by Section
5.01(p), such Loan Party is unable to obtain such consent;
provided still further that, so long as no Event of Default shall
have occurred and be continuing, such leasehold shall not be
required to be mortgaged if the Collateral Agent shall determine,
in its sole discretion, not to require the mortgaging of such
leasehold because such leasehold has an immaterial value or
constitutes an immaterial portion of the property of the Person
owning such leasehold; provided still further that, with respect
to the pledge of the capital stock of any Foreign Subsidiary,
such pledge shall cover not more than 66% of the outstanding
capital stock of such Foreign Subsidiary if it is directly owned
by a Loan Party and not cover any of the outstanding capital
stock of such Foreign Subsidiary if it is directly or indirectly
owned by another Foreign Subsidiary,
(iv) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary (other than any
Foreign Subsidiary) or such parent (other than any Foreign
Subsidiary) to take, whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and
the endorsement of notices on title documents) may be necessary
or advisable in the opinion of the Collateral Agent to vest in
the Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges,
assignments and security agreements delivered pursuant to this
Section 5.01(n), enforceable against all third parties in
accordance with their terms,
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request of
the Collateral Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Collateral Agent and the
other Secured Parties, of counsel for the Loan Parties acceptable
to the Collateral Agent as to the matters contained in clauses
(i),
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(iii) and (iv) above, as to such guaranties, mortgages, pledges,
assignments and security agreements being legal, valid and
binding obligations of each Loan Party party thereto enforceable
in accordance with their terms and as to such other matters as
the Collateral Agent may reasonably request,
(vi) as promptly as practicable after such request,
formation or acquisition, deliver, upon the request of the
Collateral Agent in its sole discretion, to the Collateral Agent
(x) with respect to each parcel of real property owned or held by
the entity (other than any Foreign Subsidiary) that is the
subject of such request, formation or acquisition and on which a
manufacturing facility is located, surveys and engineering, soils
and other reports meeting the criteria specified in Section
3.01(p)(ix)(C) or (D), as the case may be, Mortgage Policies and
an environmental assessment report meeting the criteria specified
in Section 3.01(p)(xv) and (y) with respect to each other parcel
of real property owned by the entity that is the subject of such
request, formation or acquisition, title reports meeting the
criteria specified in Section 3.01(p)(ix)(B), provided, however,
that to the extent that the Borrower or any of its Subsidiaries
shall have otherwise received any of the foregoing items with
respect to such real property, such items shall promptly after
the receipt thereof be delivered to the Collateral Agent,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited, and cause each of its
Subsidiaries to cause to be promptly deposited, any and all cash
dividends paid or payable to it or any of its Subsidiaries from
any of its Subsidiaries from time to time into the Cash
Collateral Account, and with respect to all other dividends paid
or payable to it or any of its Subsidiaries from time to time,
promptly execute and deliver, or cause such Subsidiary to
promptly execute and deliver, as the case may be, any and all
further instruments and take or cause such Subsidiary to take, as
the case may be, all such other action as the Collateral Agent
may deem necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or payable a
perfected, first priority lien on and security interest in such
dividends, and
(viii) at any time and from time to time, promptly execute
and deliver any and all further instruments and documents and
take all such other action as the Collateral Agent may deem
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties,
mortgages, pledges, assignments and security agreements.
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(o) Interest Rate Hedging. Maintain at all times, until such time
as the aggregate outstanding amount under the Term Facilities shall be
less than $400,000,000, interest rate Hedge Agreements with Persons
acceptable to the Administrative Agent, covering a notional amount of
not less than 50% of the Commitments under all of the Facilities and
the other floating rate Debt of the Loan Parties and providing for
such Persons to make payments thereunder for a period of no less than
one year to the extent of increases in interest rates greater than 3%
above the weighted average Eurodollar Rate on the First Closing Date.
(p) Landlord's Consents, Etc. With respect to leaseholds set
forth on Part II of Schedule 4.01(ll) hereto, for a reasonable period
of time after the First Closing Date, and with respect to any
leasehold acquired after the First Closing Date (other than by a
Foreign Subsidiary) for a reasonable period of time after the
acquisition thereof, use, and cause its Subsidiaries to use, its best
efforts to cure any technical defect as may be required or, in the
judgment of the Collateral Agent, necessary or desirable (as notified
to such Loan Party by the Collateral Agent) to be cured in order to
permit the mortgaging of any leasehold under which any Loan Party is a
lessee and, if a Default shall have occurred and be continuing, use,
and cause its Subsidiaries to use, its best efforts to obtain any
consent required or, in the judgment of the Collateral Agent,
necessary or desirable (as notified to such Loan Party by the
Collateral Agent) to permit the mortgaging of any leasehold under
which any Loan Party is a lessee, and, in either case, use its best
efforts to deliver and cause each of its Subsidiaries to use its best
efforts to deliver, such documents and other items referred to in
Section 5.01(n) as may be applicable in connection with the mortgaging
of such leasehold.
(q) Conditions Subsequent to Initial Extension of Credit.
Deliver to the Collateral Agent, in form and substance satisfactory to
the Collateral Agent and in sufficient copies for each Lender Party, as
soon as possible and in any event within 60 days after the Initial
Extension of Credit (or such later date as may be agreed by the
Borrower and the Collateral Agent):
(i) acknowledgment copies of proper financing statements,
duly filed under the Uniform Commercial Code of all jurisdictions
that the Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and
security interests created under the Security Agreement, covering
the Collateral described in the Security Agreement,
(ii) completed requests for information, listing the
financing statements referred to in clause (i) above and all
other effective financing
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105
statements filed in the jurisdictions referred to in clause (i)
above that name any Loan Party as debtor, together with copies of
such financing statements,
(iii) evidence that counterparts of the Mortgages have been
duly recorded in all filing or recording offices that the
Collateral Agent may deem necessary or desirable in order to
create a valid first and subsisting Lien on the property
described therein in favor of the Secured Parties subject only to
Permitted Encumbrances and that all filing and recording taxes
and fees have been paid,
(iv) evidence of the completion of all recordings and
filings of or with respect to the Intellectual Property Security
Agreement that the Collateral Agent may deem necessary or
desirable in order to perfect and protect the Liens created
thereunder,
(v) evidence that such action as the Collateral Agent may
deem necessary or desirable in order to perfect and protect the
Liens on the capital stock held by any Loan Party in any of its
Foreign Subsidiaries has been taken (including, without
limitation, the execution and delivery by the applicable Loan
Party of such agreements or instruments of pledge as may be
necessary to perfect and protect Liens in favor of the Collateral
Agent for the benefit of the Secured Parties on capital stock of
each of the Borrower's Subsidiaries organized under the laws of
Australia), provided that in any event such Liens shall cover not
more than 66% of the outstanding capital stock of Foreign
Subsidiaries directly owned by such Loan Party and shall not
cover any capital stock of any Foreign Subsidiary directly or
indirectly owned by a Foreign Subsidiary,
(vi) a signed copy of a favorable opinion addressed to the
Collateral Agent and the other Secured Parties, of counsel for
the Loan Parties acceptable to the Collateral Agent, as to the
agreements and instruments of pledge referred to in clause (v)
above being the legal, valid and binding obligation of the Loan
Party thereto, enforceable in accordance with their terms and as
to such other matters as the Collateral Agent may reasonably
request,
(vii) evidence that all other action as the Collateral Agent
may deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created under the
Collateral Documents has been taken,
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106
(viii) evidence of business interruption insurance naming the
Collateral Agent for the benefit of the Secured Parties as insured, as is
satisfactory to the Collateral Agent, and
(ix) evidence that the Borrower shall have applied to Standard &
Poor's Ratings Group's CUSIP Service Bureau for the assignment of private
placement numbers to the Notes.
(r) Conditions Subsequent to the Making of the New AXELS Series B
Advances. Deliver to the Collateral Agent, in form and substance satisfactory
to the Collateral Agent and in sufficient copies for each Lender Party, as soon
as possible, and in any event within 60 days after the making of the New AXELs
Series B Advances (or such later date as may be agreed by the Borrower and the
Collateral Agent):
(i) evidence that the Mortgage Amendments have been duly recorded
in all filing and recording offices that the Collateral Agent may deem
necessary or desirable in order to maintain a valid first and subsisting
lien on the property described therein in favor of the Secured Parties
subject only to Permitted Encumbrances and that all filing and recording
taxes and fees have been paid;
(ii) evidence that either (x) endorsements to the Mortgage
Policies have been provided which update the Mortgage Policies to the
Second Closing Date and which indicate no additional exceptions to
coverage under such Mortgage Policies from those specified on the First
Closing Date, or (y) such other satisfactory assurances have been given
to the Collateral Agent that the lien priority of the Mortgages will not
be affected by the recording of the Mortgage Amendments and that Mortgage
Policies continue to insure the Mortgages as amended by the Mortgage
Amendments; and
(iii) signed copies of favorable opinions of such local counsel as
the Administrative Agent may require, in form and substance satisfactory
to the Arrangers and the Agents.
(s) Additional Conditions Subsequent. Deliver to the Collateral
Agent, in form and substance satisfactory to the Collateral Agent and in
sufficient copies for each Lender Party, as soon as possible, and in any event
within 120 days after Third Closing Date (or such later date as may be agreed
by the Borrower and the Collateral Agent), with respect to each jurisdiction in
which Second Mortgage Amendments were required to be delivered pursuant to
Section 3.05(e)(vii)(B):
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107
(i) evidence that the Second Mortgage Amendments have been duly
recorded in all filing and recording offices that the Collateral Agent
may deem necessary or desirable in order to maintain a valid first and
subsisting lien on the property described therein in favor of the Secured
Parties subject only to Permitted Encumbrances and that all filing and
recording taxes and fees have been paid; and
(ii) evidence that either (x) endorsements to the Mortgage Policies
have been provided which update the Mortgage Policies to the Third
Closing Date and which indicate no additional exceptions to coverage
under such Mortgage Policies from those specified on the First Closing
Date, or (y) such other satisfactory assurances have been given to the
Collateral Agent that the lien priority of the Mortgages will not be
affected by the recording of the Second Mortgage Amendments and that
Mortgage Policies continue to insure the Mortgages as amended by the
Second Mortgage Amendments.
(t) Further Assurances. (i) Promptly upon request by the
Administrative Agent, or any Lender Party through the Administrative Agent,
correct, and cause each of its Subsidiaries promptly to correct, any material
defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by the Collateral Agent, or any Lender Party
through the Collateral Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, and cause each of its
Subsidiaries promptly to do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments as the Collateral Agent, or any Lender Party through the
Collateral Agent, may reasonably require from time to time in order to (A)
carry out more effectively the purposes of this Agreement, the Notes or any
other Loan Document, (B) to the fullest extent permitted by applicable law,
subject any of the Borrower's or any of its Subsidiaries' properties, assets,
rights or interests to the Liens now or hereafter intended to be covered by any
of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the
Liens intended to be created thereunder and (D) assure, convey, grant, assign,
transfer, preserve, protect and confirm more effectively unto the Agents and
the Lender Parties the rights granted or now or hereafter intended to be
granted to the Agents and the Lender Parties under any Loan
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Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party or any of its Subsidiaries is or is
to be a party; provided, however, that in any event this Section 5.01(t)
shall not require Liens on, and the execution and delivery of Collateral
Documents covering, any property to the extent not otherwise required by
the terms of the Loan Documents.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Borrower will not, at any time:
(a) Liens Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, excluding,
however, from the operation of the foregoing restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the First Closing Date and described on
Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such property
or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any such
property or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition (other than any
such Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no such
Lien shall extend to or cover any property other than the property or
equipment being acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any
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property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by
this clause (iv) shall not exceed the amount permitted under
Section 5.02(b)(iii)(B) at any time outstanding and that any
such Debt shall not otherwise be prohibited by the terms of
the Loan Documents;
(v) Liens arising in connection with
Capitalized Leases permitted under Section 5.02(b)(iii)(C);
provided that no such Lien shall extend to or cover any
Collateral or assets other than the assets subject to such
Capitalized Leases;
(vi) Liens on property of a Person existing at
the time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
investment and do not extend to any assets other than those of
the Person merged into or consolidated with the Borrower or
such Subsidiary or acquired by the Borrower or such
Subsidiary;
(vii) Liens securing Obligations of the Borrower
or any of its Subsidiaries in an aggregate amount not to
exceed $5,000,000 at any time outstanding;
(viii) Liens arising in connection with any lease
permitted under Section 5.02(c), provided that no such Lien
shall extend to or cover any assets other than the assets
subject to such lease; and
(ix) the replacement, extension or renewal of
any Lien permitted by clauses (iii) and (vi) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt other than:
(i) in the case of the Borrower,
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(A) Debt owed to its Subsidiaries; so long as at the
time of incurrence of such Debt, foreclosure proceedings shall
not have been commenced with respect to any stock or assets of
such Subsidiaries,
(B) Debt in respect of Hedge Agreements not entered
into for speculative purposes and designed to hedge against
fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and consistent
with prudent business practice, and
(C) Debt in respect of guarantees by the Borrower of
the Obligations of Foreign Subsidiaries under bank
overdraft facilities permitted under Section
5.02(b)(iii)(I)
(ii) in the case of any of its Subsidiaries, Debt owed to
the Borrower or to a wholly owned Subsidiary of the Borrower to the
extent permitted under Section 5.02(f); and
(iii) in the case of the Borrower and any of its
Subsidiaries,
(A) Debt under the Loan Documents.
(B) Debt secured by Liens permitted by Section
5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any
time outstanding,
(C) Capitalized Leases in an aggregate amount,
calculated in accordance with GAAP, not to exceed in the
aggregate $10,000,000 at any time outstanding,
(D) the Surviving Debt, and any Debt extending the
maturity of, or refunding or refinancing, in whole or in part,
any Surviving Debt, provided that the terms of any such
extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Loan Documents and
provided further that the principal amount of such Surviving
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with
such extension, refunding or refinancing,
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(E) Subordinated Debt under the Subordinated Notes
Indentures,
(F) Debt of any Person that becomes a Subsidiary of
the Borrower after the First Closing Date in accordance with
the terms of Section 5.02(f) that is existing at the time such
Person becomes a Subsidiary of the Borrower,
(G) Debt in an aggregate principal amount not to
exceed $5,000,000 outstanding at any time and consisting of
letters of credit (other than Letters of Credit issued
hereunder) and reimbursement obligations in respect thereof,
(H) other Debt in an aggregate amount not to exceed
$5,000,000 at any time outstanding,
(I) in the case of Foreign Subsidiaries, Debt under
bank overdraft facilities in an aggregate amount not to exceed
$10,000,000 at any time outstanding; and
(J) endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business.
(c) Lease Obligations. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any obligations as lessee for the rental or hire of real or personal property
of any kind under leases or agreements to lease (including Capitalized Leases)
having an original term of one year or more that would cause the direct and
contingent liabilities of the Borrower and its Subsidiaries, on a Consolidated
basis, in respect of all such obligations to exceed an amount payable in any
period of 12 consecutive months equal to the sum of (i) $25,000,000, (ii) an
amount equal to the product of (x) $200,000 and (y) the number of leased
bowling centers acquired by the Borrower or any of its Subsidiaries after the
First Closing Date and (iii) in each calendar year occurring after 1996, an
amount equal to 4% of the amount permitted under this Section 5.02(c) in the
immediately preceding calendar year, calculated as at the end of such preceding
calendar year.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to do so,
except that (i) any Subsidiary of the Borrower may merge into or consolidate
with the Borrower (in the case of any merger or consolidation to which the
Borrower is a party), or any
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other Subsidiary of the Borrower; provided that, in the case of any such merger
or consolidation, the Person surviving such merger or consolidation shall be
the Borrower (in the case of any merger or consolidation to which the Borrower
is a party), or a wholly owned Subsidiary of the Borrower, (ii) in connection
with any acquisition permitted under Section 5.02(f), any Subsidiary of the
Borrower may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided that the Person
surviving such merger shall be a wholly owned Subsidiary of the Borrower and
(iii) in connection with any sale or other disposition permitted under Section
5.02(e) (other than clause (ii) thereof), any Subsidiary of the Borrower may
merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided, however, that in each case,
immediately after giving effect thereto, no event shall occur and be continuing
that constitutes a Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets other than inventory to be sold
in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its
business,
(ii) in a transaction authorized by subsection (d)(i) or
(ii) of this Section 5.02,
(iii) the sale or other disposition of damaged, worn out or
obsolete property that is no longer necessary for the proper conduct
of the business of the Borrower and its Subsidiaries in the ordinary
course of business, provided that the fair value of the assets so
sold or otherwise disposed of shall not exceed $1,000,000 in the
aggregate in any Fiscal Year,
(iv) the sale or other disposition of assets by any Loan
Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an
aggregate amount for any one such transaction or series of related
transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of
its Subsidiaries for fair value and for cash or senior promissory
notes or equity of the seller thereof or like-kind assets (including,
without limitation, the stock of the Person owning such assets) to be
used in the business of the Borrower and
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its Subsidiaries or any other assets, provided that the fair value of
the assets so sold or exchanged shall not exceed $10,000,000 in the
aggregate in any Fiscal Year, provided further that any notes or
equity or other non-cash assets received in connection with any sale
or exchange of assets pursuant to this clause (vi) shall (A) not
exceed $5,000,000 in value in the aggregate in any Fiscal Year, and
(B) be pledged as Collateral securing the Obligations of the Borrower
or such Subsidiary, as the case may be, under the Loan Documents and
the Secured Parties' lien and security interest therein shall be
perfected (and the Borrower shall, and shall cause any such
Subsidiary to, take such action as the Collateral Agent may deem
necessary or desirable to effect such perfection) in accordance with
the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment
manufacturing business for fair value, and
(viii) the lease by the Borrower and its Subsidiaries, as
lessors, in the ordinary course of their respective business and on
an arm's-length basis, of real property consisting of space located
in their respective bowling centers, and other leasing arrangements
entered into by the Borrower and its Subsidiaries in the ordinary
course of business and without significant economic cost to the
Borrower and its Subsidiaries in order to permit the service of
alcoholic beverages and gaming operations pursuant to applicable law,
provided that in the case of sales or exchanges of assets pursuant to clauses
(vi) and (vii) above, the Borrower shall, on the date of receipt by any Loan
Party or any of its Subsidiaries of any Net Cash Proceeds from such sale,
prepay the Advances pursuant to, and in the amount and order of priority set
forth in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person other than:
(i) (A) Investments by the Borrower and its Subsidiaries
in their Subsidiaries outstanding on the First Closing Date, (B)
additional Investments in their wholly owned Subsidiaries that are
Loan Parties and (C) additional Investments in their wholly owned
Subsidiaries that are not Loan Parties and the China Joint Venture,
in the case of this clause (C), in an aggregate amount invested not
to exceed an amount in any Fiscal Year equal to the sum of (x)
$10,000,000 and (y) the aggregate amount of capital contributions
made after the First Closing Date by the Equity Investors and new
third party equity
<PAGE> 144
114
investors in Parent in any Fiscal Year to the extent such amount was
contributed to such Subsidiary as a capital contribution in such
Fiscal Year (without duplication of amounts contributed pursuant to
clauses (ii) and (ix) below), provided that, to the extent that any
amount permitted to be invested in any Fiscal Year pursuant to clause
(x) or (y) shall not have been so invested, such amount may be
invested pursuant to this subsection (i) in the next succeeding
Fiscal Year and any amounts invested in the next succeeding Fiscal
Year shall be deemed to be applied first against the amount so
carried over from the preceding Fiscal Year;
(ii) Investments by the Borrower and its Subsidiaries in
their non-wholly owned Subsidiaries and in other Persons that are not
their Subsidiaries in an aggregate amount invested from the First
Closing Date (A) not to exceed an amount in any Fiscal Year equal to
the sum of (x) $5,000,000 and (y) the aggregate amount of capital
contributions made after the First Closing Date by the Equity
Investors and new third party equity investors in Parent in any
Fiscal Year to the extent such amount was contributed to such
Subsidiary as a capital contribution in such Fiscal Year (without
duplication of amounts contributed pursuant to clause (i) above and
clause (ix) below), provided that, to the extent that any amount
permitted to be invested in any Fiscal Year pursuant to clause (x) or
(y) above shall not have been so invested, such amount may be
invested pursuant to this subsection (ii)(A) in the next succeeding
Fiscal Year and any amounts invested in the next succeeding Fiscal
Year shall be deemed to be applied first against the amount so
carried over from the preceding Fiscal Year and (B) in addition to
any Investments made pursuant to clause (A) above, an amount not to
exceed $5,000,000;
(iii) Loans and advances to employees in the ordinary
course of business of the Borrower and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $7,500,000
for the purpose of purchasing common stock of Parent and an
additional $2,000,000 at any time outstanding;
(iv) Investments by the Borrower and its Subsidiaries in
Cash Equivalents;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i)(B);
(vi) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(i)(A);
<PAGE> 145
115
(vii) Investments existing on the First Closing Date and
described on Schedule 4.01(mm) hereto;
(viii) Investments consisting of notes and equity received
pursuant to Section 5.02(e)(vi) or (vii); and
(ix) other Investments made in connection with the
acquisition of all or any part of the assets or stock or other equity
interest of any Person or the acquisition or construction of New
Centers in an aggregate amount invested not to exceed, together with
the aggregate amount of Debt incurred pursuant to Section
5.02(b)(iii)(F), $380,000,000 plus the aggregate amount of capital
contributions made after the First Closing Date by the Equity
Investors and new third party equity investors in Parent in any
Fiscal Year to the extent such amount was contributed as a capital
contribution to the Borrower or to a wholly owned Subsidiary of the
Borrower making any such Investment pursuant to this clause (ix) in
such Fiscal Year (without duplication of amounts contributed pursuant
to clauses (i) and (ii) above); provided that with respect to
investments made under this clause (ix): (1) any newly acquired or
created Subsidiary of the Borrower or any of its Subsidiaries shall
be a wholly owned Subsidiary thereof and such Subsidiary (unless such
Subsidiary is a Foreign Subsidiary) shall become a Subsidiary
Guarantor and execute and deliver the documents referred to in
Section 5.01(n); (2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or would
result therefrom; (3) substantially all of any business acquired or
invested in pursuant to this clause (ix) shall be in the same or a
substantially related line of business as the business of the
Borrower or any of its Subsidiaries; and (4) immediately after giving
effect to the acquisition of a company or business pursuant to this
clause (ix), the Borrower shall be in pro forma compliance with the
covenants contained in Section 5.04, calculated based on the relevant
Financial Statements, as though such acquisition had occurred at the
beginning of the 12-month period covered thereby, as evidenced by a
certificate of a Designated Financial Officer furnished to the Lender
Parties, demonstrating such compliance and reflecting the Adjusted
EBITDA of any bowling center so acquired for the immediately
preceding 12-month period.
(g) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations
or securities to its stockholders as such or issue
<PAGE> 146
116
or sell any capital stock or any warrants, rights or options to acquire such
capital stock, or permit any of its Subsidiaries to do any of the foregoing or
permit any of its Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock of the Borrower or any warrants,
rights or options to acquire such capital stock or to issue or sell any capital
stock or any warrants, rights or options to acquire such capital stock, except
that:
(i) so long as no Default shall have occurred and be
continuing or would result therefrom, the Borrower may (A) declare
and pay dividends and distributions payable only in common stock of
the Borrower and (B) declare and pay cash dividends to Holdings
solely to the extent necessary to (x) make payments required under
the non-competition agreements listed on Schedule 5.02(g) hereto and
(y) declare and pay cash dividends to Parent to the extent permitted
under, and in accordance with the terms of, the Holdings Guaranty,
and
(ii) so long as foreclosure proceedings shall not have
been commenced with respect to any stock or assets of any Subsidiary
of the Borrower, any such Subsidiary may (A) declare and pay cash
dividends to the Borrower and (B) declare and pay cash dividends to
any other wholly owned Subsidiary of the Borrower of which it is a
Subsidiary.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the First Closing Date.
(i) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws in any
material respect.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles or (ii) its Fiscal Year.
(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Debt, other than (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) regularly scheduled
or required repayments or redemptions of Surviving Debt and (iii) in
connection with any acquisition of a company or business pursuant to
Section 5.02(f)(ix), the prepayment, redemption, purchase, defeasance
or other satisfaction of existing Debt of such company or business to
the extent required by the terms of such
<PAGE> 147
117
Debt, or amend, modify or change any term or condition of any
Surviving Debt or Subordinated Debt in any manner that would impair
in any material respect the value of the interests or rights of the
Borrower or any of its Subsidiaries thereunder or that would impair
in any material respect the rights or interests of any Agent or any
Lender Party, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to the Borrower or
any other Loan Party.
(l) Amendment, Etc. of Related Documents. Cancel or
terminate any Related Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in any
manner any term or condition of any Related Document or give any
consent, waiver or approval thereunder, waive any default under or
any breach of any term or condition of any Related Document, agree in
any manner to any other amendment, modification or change of any term
or condition of any Related Document or take any other action in
connection with any Related Document, in each case that would impair
in any material respect the value of the interests or rights of the
Borrower thereunder or that would impair in any material respect the
rights or interests of any Agent or any Lender Party, or permit any
of its Subsidiaries to do any of the foregoing.
(m) Ownership Change. Take, or permit any of its
Subsidiaries to take, any action that would result in an "ownership
change" (as defined in Section 382 of the Internal Revenue Code) with
respect to the Borrower or any of its Subsidiaries or the application
of the "separate return limitation year" or "consolidated return
change of ownership" limitations under the Federal income tax
consolidated return regulations with respect to the Borrower or any
of its Subsidiaries (other than as a direct result of the Acquisition
and the acquisition by AMF Bowling Centers of the companies set forth
on Schedule 4.01(ff) hereto) that could be reasonably likely to have
a Material Adverse Effect.
(n) Negative Pledge. Enter into or suffer to exist, or
permit any of its Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets other than (i) in favor
of the Secured Parties, (ii) in connection with any Surviving Debt
and any Debt outstanding on the date such Subsidiary first becomes a
Subsidiary (so long as such agreement was not entered into solely in
contemplation of such Subsidiary becoming a Subsidiary) or (iii) in
connection with any lease permitted under Section 5.02(c) solely to
the extent that such lease prohibits a Lien on the lease or the
property subject to such lease.
(o) Partnerships, Etc. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any
<PAGE> 148
118
such Subsidiary the sole assets of which consist of its interest in
such partnership or joint venture.
(p) Speculative Transactions. Engage, or permit any of
its Subsidiaries to engage, in any transaction involving commodity
options or futures contracts or any similar speculative transactions
except for Hedge Agreements permitted under Section 5.02(b)(i)(B).
(q) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and
its Subsidiaries to exceed the sum of (i) $20,000,000 in any Fiscal
Year (which, in the case of the Fiscal Year ending December 31, 1996,
shall mean the period from May 1, 1996 to December 31, 1996) plus the
aggregate amount of capital contributions made after the First
Closing Date by the Equity Investors and new third party equity
investors in Parent in such Fiscal Year to the extent such amount was
contributed to the Borrower or any of its Subsidiaries as a capital
contribution in such Fiscal Year in accordance with the terms of the
Loan Documents, (ii) 4% of revenues for the prior Fiscal Year (or, if
the applicable bowling center is newly constructed and in the first
year of its operations, revenues for such Fiscal Year) of each
bowling center acquired or constructed by the Borrower or any of its
Subsidiaries after the First Closing Date and (iii) for any Fiscal
Year after the Fiscal Year ending December 31, 1996, an amount equal
to the lesser of $10,000,000 and the amount (if any) by which the
amount of Capital Expenditures permitted to be made in the
immediately preceding Fiscal Year pursuant to this Schedule 5.02(q)
exceeds the amount of Capital Expenditures actually made in such
immediately preceding Fiscal Year; provided, however, that
notwithstanding anything in this subsection 5.02(q) to the contrary,
additional Capital Expenditures may be made by the Borrower and its
Subsidiaries (x) during the period from the Second Closing Date to
December 31, 1998, in an aggregate amount not to exceed $10,000,000
solely for management information system and point of sale projects
of the type described in Schedule 5.02(q) hereto and (y) after the
Second Closing Date, in an aggregate amount not to exceed $10,000,000
in each of the Fiscal Year ending December 31, 1997 and the Fiscal
Year ending December 31, 1998, solely for purposes of making
improvements to newly acquired or existing bowling centers, provided,
further, that to the extent that any Capital Expenditures permitted
to be made within the Fiscal Year ending December 31, 1997 pursuant
to this clause (y) shall not have been so made, such Capital
Expenditures may be made in the Fiscal Year ending December 31, 1998.
(r) Payment Restrictions Affecting Subsidiaries.
Directly or indirectly, create or otherwise cause or suffer to exist
or become effective, or permit any of its
<PAGE> 149
119
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective, any encumbrance or restriction
on the ability of any of its Subsidiaries to pay dividends or make
any other distributions to the Borrower or any of its Subsidiaries on
its capital stock or with respect to any other interest or
participation, or measured by its profits, or pay any Debt owed to
the Borrower or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of the Loan Documents,
Surviving Debt as in effect on the First Closing Date and applicable
law.
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will furnish to the
Administrative Agent and the Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two days after any officer of the Borrower or Holdings obtains
knowledge of any Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the
date of such statement, a statement of a Designated Financial Officer
setting forth details of such Default, event, development or
occurrence and the action that the Borrower has taken and proposes to
take with respect thereto.
(b) Quarterly Financials. As soon as available and in
any event within 45 days after the end of each of the first three
quarters of each Fiscal Year, Consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated and consolidating statements of income and a
Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated and consolidating statements of income and a
Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to normal year-end
audit adjustments) by a Designated Financial Officer as having been
prepared in accordance with GAAP, together with (i) a certificate of
said officer (A) stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower
has taken and proposes to take with respect thereto and (B) setting
forth, for the Rolling Period ending at the end of such fiscal
quarter, the Adjusted EBITDA (and the calculation thereof) of each
New Center constructed within the preceding 15 months, EBITDA of each
bowling center acquired or constructed by the Borrower or any of its
Subsidiaries after the First Closing Date
<PAGE> 150
120
and acquired or constructed at least 15 months prior to the end of
such Rolling Period and all Other Additions, if any, for such Rolling
Period and (ii) a schedule in form satisfactory to the Administrative
Agent of the computations used by the Borrower in determining
compliance with the covenants contained in Section 5.04, provided
that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to
GAAP.
(c) Annual Financials. As soon as available and in any
event within 90 days after the end of each Fiscal Year, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, including therein Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and Consolidated and consolidating statements of
income and a Consolidated statement of cash flows of the Borrower and
its Subsidiaries for such Fiscal Year, in each case accompanied by an
opinion not qualified as to scope or going concern of Arthur
Andersen, L.L.P. or other independent public accountants of
nationally recognized standing acceptable to the Administrative
Agent, together with (i) a certificate of such accounting firm to the
Lender Parties stating that in the course of the regular audit of the
business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations
used by such accountants in determining, as of the end of such Fiscal
Year, compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with
Section 5.04, a statement of reconciliation conforming such financial
statements to GAAP and (iii) a certificate of a Designated Financial
Officer (A) stating that no Default has occurred and is continuing
or, if a default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto and (B) setting forth, for the
Rolling Period ending at the end of such Fiscal Year, the Adjusted
EBITDA (and the calculation thereof) of each New Center constructed
within the preceding 15 months, EBITDA of each bowling center
acquired or constructed by the Borrower or any of its Subsidiaries
after the First Closing Date and acquired or constructed at least 15
months prior to the end of such Rolling Period and all Other
Additions, if any, for such Rolling Period.
<PAGE> 151
121
(d) Annual Forecasts. As soon as available and in any
event no later than 15 days after the end of each Fiscal Year,
forecasts prepared by management of the Borrower, in form
satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements on a monthly basis for the Fiscal
Year following such Fiscal Year and on an annual basis for each
Fiscal Year thereafter until the Termination Date for the AXELs
Series B Facility.
(e) ERISA Events and ERISA Reports. (i) Promptly and in
any event within 20 days after any Loan Party or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred, a
statement of a Designated Financial Officer describing such ERISA
Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and
(ii) on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.
(f) Plan Terminations. Promptly and in any event within
10 Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer
any Plan.
(g) Actuarial Reports. Within 20 Business Days after
receipt thereof by any Loan Party or any ERISA Affiliate, a copy of
the annual actuarial valuation report for each Plan the funded
current liability percentage (as defined in Section 302(d)(8) of
ERISA) of which is less than 90% or the unfunded current liability of
which exceeds $2,000,000.
(h) Plan Annual Reports. Within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan.
(i) Multiemployer Plan Notices. Promptly and in any
event within 10 Business Days after receipt thereof by any Loan Party
or any ERISA Affiliate from the sponsor of a Multiemployer Plan,
copies of each notice concerning (i) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (iii) the amount of liability incurred, or that
may be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (i) or (ii).
<PAGE> 152
122
(j) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
required to be disclosed in Section 4.01(j).
(k) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports that Parent or any Loan Party or any of its Subsidiaries
sends to all of its stockholders, and copies of all regular, periodic
and special reports, and all registration statements, that Parent or
any Loan Party or any of its Subsidiaries files with the Securities
and Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.
(l) Creditor Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other
holder of the securities of any Loan Party or of any of its
Subsidiaries pursuant to the terms of any indenture, loan or credit
or similar agreement and not otherwise required to be furnished to
the Lender Parties pursuant to any other clause of this Section 5.03.
(m) Agreement Notices. Promptly upon receipt thereof,
copies of all notices of any default or breach and all other material
requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or indenture,
loan or credit or similar agreement and, from time to time upon
request by the Administrative Agent, such information and reports
regarding the Related Documents as the Administrative Agent may
reasonably request.
(n) Revenue Agent Reports. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service,
that propose, determine or otherwise set forth positive adjustments
to the Federal income tax liability of the affiliated group (within
the meaning of Section 1504(a)(1) of the Internal Revenue Code) of
which the Borrower is a member aggregating $2,000,000 or more.
(o) Tax Certificates. Promptly, and in any event within
five Business Days after the due date (with extensions) for filing
the final Federal income tax return in respect of each taxable year,
a certificate (a "Tax Certificate"), signed by the President of the
Borrower or a Designated Financial Officer, stating that the common
parent of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member has paid to the Internal Revenue
<PAGE> 153
123
Service or other taxing authority, or to the Borrower, the full
amount that such affiliated group is required to pay in respect of
Federal income tax for such year and that the Borrower and its
Subsidiaries have received any amounts payable to them, and have not
paid amounts in respect of taxes (Federal, state, local or foreign)
in excess of the amount they are required to pay, under the Tax
Agreements in respect of such taxable year.
(p) Notification of Tax Adjustments. Promptly, and in
any event within five Business Days after receipt of notice thereof,
notice of any adjustment that has been proposed formally or
informally by any tax authority relating to any tax return (Federal,
state, local and foreign) filed by any Loan Party or any of its
Subsidiaries and Affiliates in excess of $1,000,000.
(q) Environmental Conditions. Notice of any
Environmental Action against, or of any noncompliance with any
Environmental Law or Environmental Permit by, any Loan Party or any
of its Subsidiaries that could (i) reasonably be expected to have a
Material Adverse Effect or (ii) reasonably be expected to cause any
property described in the Mortgages to be subject to any restrictions
on ownership, occupancy, use or transferability under any
Environmental Law that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, such
notice to be furnished promptly after such Environmental Action or
noncompliance meets the criteria set forth in either subsection (i)
or subsection (ii) of this Section 5.03(q).
(r) Real Property. As soon as available and in any event
within 60 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(kk) and 4.01(ll) hereto, including an
identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a list
and description (including the street address, county or other
relevant jurisdiction, state, record owner, book value thereof, and
in the case of leases of property, lessor, lessee, expiration date
and annual rental cost thereof) of all real property acquired or
leased during such Fiscal Year and a description of such other
changes in the information included in such Schedules as may be
necessary for such Schedules to be accurate and complete, provided
that so long as no Default shall have occurred and be continuing,
updated asset appraisals shall not be required pursuant to this
subsection (r).
(s) Insurance. As soon as available and in any event
within 60 days after the end of each Fiscal Year, a report
summarizing the insurance coverage (specifying type, amount and
carrier) in effect for each Loan Party and its Subsidiaries and
<PAGE> 154
124
containing such additional information as any Lender Party (through
the Administrative Agent) may reasonably specify.
(t) Guarantees of Overdraft Facilities of Foreign
Subsidiaries. On the first Business Day of each week, during such
times as the aggregate Unused Working Capital Commitments shall be
less than $15,000,000, a report specifying the amount of Debt of the
Borrower outstanding under Section 5.02(b)(i)(C) as of the last
Business Day of the prior week.
(u) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party or any of its
Subsidiaries as any Lender Party (through the Administrative Agent)
may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) Minimum EBITDA. Maintain at all times (calculated at
the end of each fiscal quarter of the Borrower) Modified Consolidated
EBITDA of not less than the sum of (i) the amount set forth below for
each Rolling Period set forth below and (ii) the EBITDA Adjustment
Amount for such Rolling Period:
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING AMOUNT
--------------------- ------
<S> <C>
September 30, 1996 $140,000,000
December 31, 1996 $145,000,000
March 31, 1997 $150,000,000
June 30, 1997 $150,000,000
September 30, 1997 $150,000,000
December 31, 1997 $150,000,000
March 31, 1998 $150,000,000
June 30, 1998 $150,000,000
September 30, 1998 $155,000,000
December 31, 1998 $155,000,000
March 31, 1999 $155,000,000
June 30, 1999 $155,000,000
September 30, 1999 $165,000,000
December 31, 1999 $165,000,000
March 31, 2000 $165,000,000
June 30, 2000 $165,000,000
</TABLE>
<PAGE> 155
125
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING AMOUNT
--------------------- ------
<S> <C>
September 30, 2000 $175,000,000
December 31, 2000 $175,000,000
March 31, 2001 $175,000,000
June 30, 2001 $175,000,000
September 30, 2001 $185,000,000
December 31, 2001 $185,000,000
March 31, 2002 $185,000,000
June 30, 2002 $185,000,000
September 30, 2002 $195,000,000
December 31, 2002 $195,000,000
March 31, 2003 $195,000,000
June 30, 2003 $195,000,000
September 30, 2003 $200,000,000
December 31, 2003 $200,000,000
March 31, 2004 and thereafter $200,000,000
</TABLE>
(b) Cash interest Coverage Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a
ratio of Modified Consolidated EBITDA to cash interest payable on all
Debt of the Borrower and its Subsidiaries on a Consolidated basis, in
each case for such Rolling Period of not less than the amount set
forth below for each Rolling Period set forth below:
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
September 30, 1996 2.00:1
December 31, 1996 2.00:1
March 31, 1997 2.00:1
June 30, 1997 2.00:1
September 30, 1997 2.25:1
December 31, 1997 2.25:1
March 31, 1998 2.25:1
June 30, 1998 2.25:1
September 30, 1998 2.50:1
December 31, 1998 2.50:1
March 31, 1999 2.50:1
June 30, 1999 2.50:1
September 30, 1999 2.75:1
December 31, 1999 2.75:1
</TABLE>
<PAGE> 156
126
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
March 31, 2000 2.75:1
June 30, 2000 2.75:1
September 30, 2000 3.00:1
December 31, 2000 3.00:1
March 31, 2001 3.00:1
June 30, 2001 3.00:1
September 30, 2001 2.00:1
December 31, 2001 2.00:1
March 31, 2002 2.00:1
June 30, 2002 2.00:1
September 30, 2002 2.25:1
December 31, 2002 2.25:1
March 31, 2003 2.25:1
June 30, 2003 2.25:1
September 30, 2003 2.25:1
December 31, 2003 2.25:1
March 31, 2004 2.25:1
June 30, 2004 2.25:1
September 30, 2004 and thereafter 2.50:1
</TABLE>
(c) Fixed Charge Coverage Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a
ratio of (A) Modified Consolidated EBITDA during such Rolling Period
less the sum of (I) cash taxes paid plus (II) Capital Expenditures
made, in each case, by the Borrower and its Subsidiaries during such
Rolling Period to (B) the sum of (i) cash interest payable on all
Debt plus (ii) principal amounts of all Debt payable (other than the
principal amount of Debt to the extent it has been refinanced), in
each case, by the Borrower and its Subsidiaries during such Rolling
Period of not less than the amount set forth below for each Rolling
Period set forth below:
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
September 30, 1996 1.05:1
December 31, 1996 1.05:1
March 31, 1997 1.05:1
June 30, 1997 1.05:1
September 30, 1997 1.10:1
December 31, 1997 1.10:1
</TABLE>
<PAGE> 157
127
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
March 31, 1998 1.10:1
June 30, 1998 1.10:1
September 30, 1998 1.15:1
December 31, 1998 1.15:1
March 31, 1999 1.15:1
June 30, 1999 1.15:1
September 30, 1999 1.20:1
December 31, 1999 1.20:1
March 31, 2000 1.20:1
June 30, 2000 1.20:1
September 30, 2000 1.20:1
December 31, 2000 1.20:1
March 31, 2001 1.20:1
June 30, 2001 1.20:1
September 30, 2001 1.05:1
December 31, 2001 1.05:1
March 31, 2002 1.05:1
June 30, 2002 1.05:1
September 30, 2002 1.10:1
December 31, 2002 1.10:1
March 31, 2003 1.10:1
June 30, 2003 1.10:1
September 30, 2003 1.10:1
December 31, 2003 1.10:1
March 31, 2004 and thereafter 1.10:1
</TABLE>
(d) Senior Debt to EBITDA Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a
ratio of Consolidated Debt (other than Subordinated Debt and Hedge
Agreements) of the Borrower and its Subsidiaries to Modified
Consolidated EBITDA of not more than the amount set forth below for
each Rolling Period set forth below:
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
September 30, 1996 3.50:1
December 31, 1996 3.50:1
March 31, 1997 3.50:1
June 30, 1997 3.75:1
</TABLE>
<PAGE> 158
128
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
September 30, 1997 3.75:1
December 31, 1997 3.75:1
March 31, 1998 3.50:1
June 30, 1998 3.25:1
September 30, 1998 2.75:1
December 31, 1998 2.75:1
March 31, 1999 2.75:1
June 30, 1999 2.75:1
September 30, 1999 2.25:1
December 31, 1999 2.25:1
March 31, 2000 2.25:1
June 30, 2000 2.25:1
September 30, 2000 1.50:1
December 31, 2000 1.50:1
March 31, 2001 1.50:1
June 30, 2001 1.50:1
September 30, 2001 1.50:1
December 31, 2001 1.50:1
March 31, 2002 1.50:1
June 30, 2002 1.50:1
September 30, 2002 1.50:1
December 31, 2002 1.50:1
March 31, 2003 1.50:1
June 30, 2003 1.50:1
September 30, 2003 1.50:1
December 31, 2003 1.50:1
March 31, 2004 and thereafter 1.50:1
</TABLE>
(e) Total Debt/EBITDA Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a
ratio of Consolidated total Debt (other than Hedge Agreements) of the
Borrower and its Subsidiaries to Modified Consolidated EBITDA of not
more than the amount set forth below for each Rolling Period set
forth below:
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
September 30, 1996 6.95:1
December 31, 1996 6.95:1
</TABLE>
<PAGE> 159
129
<TABLE>
<CAPTION>
ROLLING PERIOD ENDING RATIO
--------------------- -----
<S> <C>
March 31, 1997 6.75:1
June 30, 1997 6.50:1
September 30, 1997 6.50:1
December 31, 1997 6.50:1
March 31, 1998 6.50:1
June 30, 1998 6.50:1
September 30, 1998 6.50:1
December 31, 1998 6.50:1
March 31, 1999 6.50:1
June 30, 1999 6.50:1
September 30, 1999 6.25:1
December 31, 1999 6.25:1
March 31, 2000 6.25:1
June 30, 2000 6.25:1
September 30, 2000 5.50:1
December 31, 2000 5.50:1
March 31, 2001 5.50:1
June 30, 2001 5.50:1
September 30, 2001 4.75:1
December 31, 2001 4.75:1
March 31, 2002 4.75:1
June 30, 2002 4.75:1
September 30, 2002 4.25:1
December 31, 2002 4.25:1
March 31, 2003 4.25:1
June 30, 2003 4.25:1
September 30, 2003 4.00:1
December 31, 2003 4.00:1
March 31, 2004 and thereafter 4.00:1
</TABLE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
<PAGE> 160
130
(a) (i) the Borrower shall fail to pay any principal of
any Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan Document,
in each case under this clause (ii) within three days after the same
becomes due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect
when made; or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.14, 5.01(e), (f),
(m), (n)(i) or (n)(ii), (p), (q), (r), (s) or (t), 5.02, 5.03(a) or
5.04; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for
15 days after the earlier of the date on which (A) a Responsible
Officer becomes aware of such failure or (B) written notice thereof
shall have been given to the Borrower by the Administrative Agent or
any Lender Party; or
(e) any Loan Party or any of its Material Subsidiaries
shall fail to pay any principal of, premium or interest on or any
other amount payable in respect of any Debt that is outstanding in a
principal amount of at least $25,000,000 either individually or in
the aggregate (but excluding Debt outstanding hereunder) of such Loan
Party or such Material Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt or otherwise to cause, or to permit the holder thereof to cause,
such Debt to mature; or any such Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
<PAGE> 161
131
(f) any Loan Party or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Loan Party or any of
its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but
not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Material
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against any Loan Party or any
of its Material Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be any period of 15 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(g) if and to the extent that the
amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering
payment thereof so long as such insurer, which shall be rated at
least "A" by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, the amount of such judgment
or order; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Material Subsidiaries that could
be reasonably likely to have a Material Adverse Effect, and there
shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01, 3.04, 3.05 or 5.01(n) shall for any
reason cease to be valid and binding
<PAGE> 162
132
on or enforceable against any Loan Party party to it, or any such
Loan Party shall so state in writing; or
(j) any provision relating to the subordination of any
Subordinated Debt to the Obligations of the Loan Parties under the
Loan Documents contained in any Subordinated Debt Document shall for
any reason cease to be valid and binding on or enforceable against
any Loan Party party to it or any holder of Subordinated Debt issued
pursuant to such Subordinated Debt Document, or any such Loan Party
or holder shall so state in writing; or
(k) any Collateral Document (excluding Mortgages covering
Collateral which, in the aggregate, is immaterial) after delivery
thereof pursuant to Section 3.01, 3.04, 3.05 or 5.01(n) shall for any
reason (other than pursuant to the terms thereof or as a result of
action taken or failure to take action by any Agent or Lender Party)
cease to create a valid and perfected first priority lien on and
security interest in the Collateral purported to be covered thereby;
or
(l) Parent ceases to own and control legally and
beneficially all of the outstanding shares of the capital stock of
Holdings; or
(m) Holdings ceases to own and control legally and
beneficially all of the outstanding shares of the capital stock of
the Borrower; or
(n) a Change of Control shall occur; or
(o) any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such
ERISA Event) of the Insufficiency of such Plan and the Insufficiency
of any and all other Plans with respect to which an ERISA Event shall
have occurred and then exist (or the liability of the Loan Parties
and the ERISA Affiliates related to such ERISA Event) exceeds
$25,000,000; or
(p) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Loan Parties and the ERISA Affiliates as
Withdrawal Liability (determined as of the date of such
notification), exceeds $25,000,000 or requires payments exceeding
$7,500,000 per annum; or
<PAGE> 163
133
(q) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of
the Loan Parties and the ERISA Affiliates to all Multiemployer Plans
that are then in reorganization or being terminated have been or will
be increased over the amounts contributed to such Multiemployer Plans
for the plan years of such Multiemployer Plans immediately preceding
the plan year in which such reorganization or termination occurs by
an amount exceeding $7,500,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of the Lender Parties and the obligation of each
Appropriate Lender to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Working Capital Lender pursuant to Section 2.03(c)) and of
each Issuing Bank to issue Letters of Credit to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to any Loan Party or any of its Subsidiaries under the Federal
Bankruptcy Code, (x) the obligation of each Lender to make Advances (other than
Letter of Credit Advances by an Issuing Bank or a Working Capital Lender
pursuant to Section 2.03(c)) and of each Issuing Bank to issue Letters of
Credit shall automatically be terminated and (y) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any
<PAGE> 164
134
right or claim of any Person other than the Administrative Agent and the Lender
Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the L/C Cash Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b)
the total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Administrative Agent determines to be free and clear of any such right
and claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, an Issuing Bank (if applicable) and a potential
Hedge Bank) hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters expressly provided for in the
Loan Documents as being subject to the discretion of any Agent, such matters
shall be subject to the sole discretion of such Agent, its directors, officers,
agents and employees. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal liability or
that is contrary to this Agreement or applicable law. Each Agent agrees to
give to each Lender Party and each other Agent prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither the Agents nor
any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Agent: (a) may treat the payee of any Note as the holder
thereof until, in the case of the Administrative Agent, the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, or, in the case of any other Agent,
<PAGE> 165
135
such Agent has received notice from the Administrative Agent that it has
received and accepted such Assignment and Acceptance, in each case as provided
in Section 8.07; (b) may consult with legal counsel (including counsel for any
Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the
Loan Documents; (d) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, Citicorp, Goldman and Affiliates.
With respect to its Commitments, the Advances made by it and the Notes issued
to it, each of Citibank, Citicorp and Goldman shall have the same rights and
powers under the Loan Documents as any other Lender Party and may exercise the
same as though it were not an Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include each of Citibank,
Citicorp and Goldman in its individual capacity. Each of Citibank, Citicorp
and Goldman and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if Citibank, Citicorp or Goldman, as
the case may be, were not an Agent and without any duty to account therefor to
the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the Agents or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender Party and based on
<PAGE> 166
136
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower. For purposes of this Section 7.05(a), the Lender
Parties' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, (c) the aggregate unused portions
of their respective Term Loan Commitments, AXELs Series A Commitments, AXELs
Series B Commitments, Acquisition Commitments and Acquisition B Commitments at
such time and (d) their respective Unused Working Capital Commitments at such
time; provided that the aggregate principal amount of Letter of Credit Advances
owing to any Issuing Bank shall be considered to be owed to the Working Capital
Lenders ratably in accordance with their respective Working Capital
Commitments. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender Party's Commitment with respect to
the Facility under which such Defaulted Advance was required to have been made
shall be considered to be unused for purposes of this Section 7.05(a) to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse an Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lender Party to such Agent as provided herein shall
not relieve any other Lender Party of its obligation hereunder to reimburse
such Agent for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent
for such other Lender Party's ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender Party hereunder, the
agreement and obligations of each
<PAGE> 167
137
Lender Party contained in this Section 7.05(a) shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
(b) Each Working Capital Lender severally agrees to
indemnify each Issuing Bank (to the extent not promptly reimbursed by the
Borrower) from and against such Working Capital Lender's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Issuing Bank in any way relating to or arising out of the
Loan Documents or any action taken or omitted by such Issuing Bank under the
Loan Documents; provided, however, that no Working Capital Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Working Capital Lender agrees to
reimburse such Issuing Bank promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, reasonable fees and expenses
of counsel) payable by the Borrower under Section 8.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower. For purposes of this Section 7.05(b), the Working Capital Lenders'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Working Capital Lenders,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, and (c) their respective Unused
Working Capital Commitments at such time; provided that the aggregate principal
amount of Letter of Credit Advances owing to any Issuing Bank shall be
considered to be owed to the Working Capital Lenders ratably in accordance with
their respective Working Capital Commitments. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such Lender
Party's Commitment with respect to the Facility under which such Defaulted
Advance was required to have been made shall be considered to be unused for
purposes of this Section 7.05(b) to the extent of the amount of such Defaulted
Advance. The failure of any Working Capital Lender to reimburse such Issuing
Bank promptly upon demand for its ratable share of any amount required to be
paid by the Working Capital Lenders to such Issuing Bank as provided herein
shall not relieve any other Working Capital Lender of its obligation hereunder
to reimburse such Issuing Bank for its ratable share of such amount, but no
Working Capital Lender shall be responsible for the failure of any other
Working Capital Lender to reimburse such Issuing Bank for such other Working
Capital Lender's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Working Capital Lender hereunder, the
agreement and obligations of each Working Capital
<PAGE> 168
138
Lender contained in this Section 7.05(b) shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to
any or all of the Facilities at any time by giving written notice thereof to
the Lender Parties and the Borrower and may be removed as to all of the
Facilities at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent as to such of the Facilities as to which such Agent
has resigned or been removed subject, so long as no Default shall have occurred
and be continuing, to the consent of the Borrower, such consent not to be
unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after such retiring Agent's giving of notice of resignation or
the Required Lenders' removal of such retiring Agent, then such retiring Agent
may, on behalf of the Lender Parties, appoint a successor Agent subject, so
long as no Default shall have occurred and be continuing, to the consent of the
Borrower, such consent not to be unreasonably withheld or delayed, which shall
be a commercial bank organized or licensed under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as an Agent hereunder by
a successor Agent as to all of the Facilities and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed
to and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Loan Documents. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to less than all of
the Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent as to
such Facilities, other than with respect to funds transfers and other similar
aspects of the administration of Borrowings under such Facilities, issuances of
Letters of Credit (notwithstanding any resignation as Agent with respect to the
Letter of Credit Facility) and payments by the Borrower in respect of such
Facilities, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as
aforesaid. After any retiring Agent's resignation or removal hereunder as
Agent as
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to all of the Facilities, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
as to any Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of
the Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lender
Parties (other than any Lender Party that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) waive any of the conditions
specified in Section 3.01 or, in the case of the Initial Extension of Credit,
Section 3.02, (ii) change the number of Lenders or the percentage of (x) the
Commitments, (y) the aggregate unpaid principal amount of the Advances or (z)
the aggregate Available Amount of outstanding Letters of Credit that, in each
case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Guarantor under Section
1 of any Guaranty or release such Guarantor or otherwise limit such Guarantor's
liability with respect to the Obligations owing to the Administrative Agent and
the Lender Parties other than, in the case of any Subsidiary Guarantor, to the
extent permitted under the Subsidiary Guaranty, (iv) release any material
portion of the Collateral in any transaction or series of related transactions
(except to the extent permitted by Section 5.02(e)) or permit the creation,
incurrence, assumption or existence of any Lien (other than Liens permitted
under Section 5.02(a)) on any material portion of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents and
other than Debt owing to any other Person, provided that, in the case of any
Lien on any material portion of the Collateral to secure Debt owing to any
other Person (other than Liens permitted under Section 5.02(a)), (A) the
Borrower shall, on the date such Debt shall be incurred or issued, prepay the
Advances pursuant to, and in the order of priority set forth in, Section
2.06(b)(ii) in an aggregate principal amount equal to the amount of the Net
Cash Proceeds thereof to the extent required to do so under Section
2.06(b)(ii), (B) such Lien shall be subordinated to the Liens created under the
Loan Documents on terms acceptable to the Required Lenders and (C) the Required
Lenders shall
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otherwise permit the creation, incurrence, assumption or existence of such Lien
and, to the extent not otherwise permitted under Section 5.02(b), of such Debt,
(v) amend this Section 8.01, or (vi) limit the liability of any Loan Party
under any of the Loan Documents, (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender that has a
Commitment under the Term Loan Facility, AXELs Series A Facility, AXELs Series
B Facility, Acquisition Facility, Acquisition B Facility or Working Capital
Facility if affected by such amendment, waiver or consent, (i) increase the
Commitments of such Lender or subject such Lender to any additional obligations,
(ii) reduce the principal of, or interest on, the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender, (iii) postpone any
date fixed for any payment of principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender or
(iv) change the allocation or the order of application of any prepayment set
forth in Section 2.06 in any manner that materially affects such Lender and (c)
no amendment, waiver or consent shall, unless in writing and signed by (i) the
Required Lenders, each Acquisition Lender and each New AXELs Series B Lender,
waive any of the conditions specified in Section 3.04 or, in the case of the
making of New AXELs Series B Advances, Section 3.02 or (ii) the Required
Lenders and each Acquisition B Lender, waive any of the conditions specified in
Section 3.05; provided further that no amendment, waiver or consent shall,
unless in writing and signed by each Issuing Bank in addition to the Lenders
required above to take such action, affect the rights or obligations of the
Issuing Banks under this Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by an Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of such Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at AMF
Group Inc., 8100 AMF Drive, Mechanicsville, Virginia 23111, Attention:
Stephen E. Hare, with a copy to Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004, Attention: David Greenwald, Esq.; if to any Initial
Lender or any Initial Issuing Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender Party, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender Party; if to the Collateral Agent, at its address at
399 Park Avenue, New York, New York 10043, Attention: Charles Foster; and if to
the Administrative Agent, at its address at 399 Park Avenue, 6th Floor, New
York, New York 10043, Attention: Charles Foster; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Administrative Agent.
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All such notices and communications shall (a) when mailed, be effective three
Business Days after the same is deposited in the mails, (b) when mailed for
next day delivery by a reputable freight company or reputable overnight courier
service, be effective one Business Day thereafter, and (c) when sent by
telegraph, telecopier or telex, be effective when the same is confirmed by
telephone, telecopier confirmation or return telecopy or telex answerback,
respectively, except, that notices and communications to the Administrative
Agent pursuant to Article II, III or VII shall not be effective until received
by the Administrative Agent. Delivery by telecopier of an executed counterpart
of any amendment or waiver of any provision of this Agreement or the Notes or
of any Exhibit hereto to be executed and delivered hereunder shall be effective
as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender Party or any Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all costs and expenses of the Arrangers and the Agents in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel (including, without limitation, local or foreign counsel)
for THE Arrangers and the Agents with respect thereto, with respect to advising
each of the Administrative Agent and the Collateral Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating
in or monitoring any bankruptcy, insolvency or other similar proceeding
involving creditors' rights generally and any proceeding ancillary thereto) and
(ii) all costs and expenses of the Agents and the Lender Parties in connection
with the enforcement of the Loan Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel (including, without limitation, local or foreign
counsel) for each Agent and each Lender Party with respect thereto).
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(b) The Borrower agrees to indemnify and hold harmless
each Agent, each Arranger, each Lender Party and each of their Affiliates and
their officers, trustees, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Facilities, the actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Loan Documents or any of the
transactions contemplated thereby, including, without limitation, any
acquisition or proposed acquisition (including, without limitation, the
Acquisition and any of the other transactions contemplated hereby) by the
Equity Investors or any of their Subsidiaries or Affiliates of all or any
portion of the stock or substantially all the assets of the Company or any of
its Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials
on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated
(but excluding any such claims, damages, losses, liabilities and expenses (A)
of any Indemnified Party to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (B) arising from disputes among two or more Lender
Parties (but not including any such dispute that involves a Lender Party to the
extent that such Lender Party is acting in any different capacity (such as an
Agent or Arranger) or to the extent it involves syndication activities). The
Borrower also agrees not to assert any claim against any Agent, any Lender
Party or any of their Affiliates, or any of their respective officers,
directors, trustees, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby.
(c) If anypayment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.01(c),
2.06, 2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
Party other than on the last day of the Interest Period for such Advance upon
an
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assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result
of such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrower contained in Sections 2.10 and 2.12
and this Section 8.04 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party,
irrespective of whether such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each Lender Party agrees promptly to notify the Borrower after any such set-off
and application; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Lender Party and its respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its respective Affiliates may have.
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SECTION 8.06. Binding Effect. This Agreement shall become
effective when Amendment No. 2 shall have been executed by the Borrower and the
Agents and when the Administrative Agent shall have been notified by the
Required Lenders and each Acquisition B Lender that such Lender Parties have
executed Amendment No. 2 and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may (and, so long as no Default shall have occurred and be continuing, if
demanded by the Borrower (following a demand by such Lender pursuant to Section
2.10 or 2.12 or if such Lender shall be a Defaulting Lender) upon at least 5
Business Days' notice to such Lender and the Administrative Agent, will) assign
to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, all or a portion of its Commitment or Commitments, the
Advances owing to it and the Note or Notes held by it); provided, however, that
(i) each such assigmnent shall be of a uniform, and not a varying, percentage
of all rights and obligations under and in respect of one or more Facilities,
(ii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment or Commitments
of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $5,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as
a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be
arranged by the Borrower after consultation with the Administrative Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement and the other Loan Documents or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of
the rights and obligations of the assigning Lender under this Agreement and the
other Loan Documents, (v) no Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to this Section
8.07(a) unless and until such Lender shall have received one or more payments
from either the Borrower or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the
Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes
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subject to such assignment and a processing and recordation fee of $1,500 for
each Assignment and Acceptance between a Lender and one of its Affiliates or
another Lender or $3,000 for each other Assignment and Acceptance, provided,
however, that for each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the
Administrative Agent the applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
or Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.10, 2.12 and 8.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assigmnent and Acceptance covering all or the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender Party assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (ii) such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any other Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any
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other Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is
an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender Party 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 assigning Lender Party and an assignee, together with any Note
or Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form
of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and the other Agents. In the case of any assignment by
a Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
a Facility pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder under such Facility, a new Note to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1, A-2, A-3, A-4 ,
A-5 or A-6 hereto, as the case may be.
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(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing
Bank's rights and obligations under this Agreement, the amount of the Letter of
Credit Commitment of the assigning Issuing Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000 and
shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each
such assignment shall be to an Eligible Assignee and (iii) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,000.
(g) Each Lender Party may sell participations to one or
more Persons (other than any Loan Party or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes (if any) held by it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including, without limitation,
its Commitments) shall remain unchanged, (ii) such Lender Party shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent
and the other Lender Parties shall continue to deal solely and directly with
such Lender Party in connection with such Lender Party's rights and obligations
under this Agreement and (v) no participant under any such participation shall
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 reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, release any Guarantor or Guarantors to the extent that such
release would have the effect of releasing all or substantially all of the
Collateral, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee
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or participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any other Lender Party nor any of their respective
officers or directors shall be liable or responsible for: (a) the use that may
be made of any Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by such Issuing Bank against presentation of documents that
do not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a claim against
such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to
the extent of any direct, but not consequential, damages suffered by the
Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of such Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
<PAGE> 179
149
SECTION 8.10. Confidentiality. Neither any Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender
Party's Affiliates and their officers, directors, partners, employees, agents
and advisors and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, provided that, other than with respect to
Confidential Information otherwise permitted to be disclosed pursuant to clause
(d) below, such Agent or Lender Party shall, unless prohibited by applicable
law or regulation or court order, give notice to the Borrower of any such
requirement to disclose such Confidential Information, and, if practicable,
such notice shall be given prior to such disclosure, provided, however, that
the failure to give such notice shall not prohibit such disclosure, (c) to any
rating agency when required by it, provided that, prior to any such disclosure,
such rating agency shall undertake to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it from such
Lender Party and (d) as requested or required by any state, federal or foreign
authority or examiner or the National Association of Insurance Commissioners or
any state or federal authority regulating such Lender Party.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
<PAGE> 180
150
SECTION 8.12. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense, execute and deliver to such Loan Party such documents
as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents.
<PAGE> 181
151
SECTION 8.13. Governing Law, Waiver of Jury Trial. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of the Borrower, the Agents and the
Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of any Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
<PAGE> 182
152
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
AMF GROUP INC.
By
----------------------------------------
Title:
GOLDMAN SACHS CREDIT
PARTNERS L.P.,
as Syndication Agent
By
----------------------------------------
Title:
CITIBANK, N.A.,
as Administrative Agent
By
----------------------------------------
Title:
CITICORP USA, INC.,
as Collateral Agent
By
----------------------------------------
Title:
<PAGE> 183
153
LENDERS
GOLDMAN SACHS CREDIT
PARTNERS L. P.
By
---------------------------------------
Title:
CITICORP USA, INC.
By
---------------------------------------
Title:
ABN AMRO BANK N.V., NEW YORK
BRANCH
By
---------------------------------------
Title:
By
---------------------------------------
Title:
AERIES FINANCE LTD.
By
---------------------------------------
Title:
<PAGE> 184
154
ALLSTATE LIFE INSURANCE
By
----------------------------------
Title:
AMARA - 2 FINANCE LTD.
By
----------------------------------
Title:
AMSOUTH BANK OF ALABAMA
By
----------------------------------
Title:
BANK OF AMERICA ILLINOIS
By
----------------------------------
Title:
BANK OF HAWAII
By
----------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
----------------------------------
Title:
<PAGE> 185
155
BANK OF SCOTLAND
By
---------------------------------
Title:
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By
---------------------------------
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By
---------------------------------
Title:
CAPTIVA II FINANCE LTD.
By
---------------------------------
Title:
CIBC INC.
By
---------------------------------
Title:
<PAGE> 186
156
COMERICA BANK
By
--------------------------------
Title:
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By
--------------------------------
Title:
By
--------------------------------
Title:
CORESTATES BANK N.A.
By
--------------------------------
Title:
CREDITANSTALT BANKVEREIN
By
--------------------------------
Title:
By
--------------------------------
Title:
CRESTAR BANK
By
--------------------------------
Title:
<PAGE> 187
157
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN
BRANCHES
By
--------------------------------
Title:
By
--------------------------------
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By
--------------------------------
Title:
FIRST SOURCE FINANCIAL LLP
By
--------------------------------
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By
--------------------------------
Title:
HELLER FINANCIAL, INC.
By
--------------------------------
Title:
<PAGE> 188
158
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By
--------------------------------
Title:
KEYPORT LIFE INSURANCE
COMPANY
By: Chancellor Senior Secured
Management, Inc. as Portfolio
Advisor
By
--------------------------------
Title:
MARINE MIDLAND BANK
By
--------------------------------
Title:
By
--------------------------------
Title:
MEDICAL LIABILITY MUTUAL
INSURANCE CO.
By: Chancellor Senior Secured
Management, Inc. as Investment
Manager
By
--------------------------------
Title:
<PAGE> 189
159
MELLON BANK, N.A.
By
--------------------------------
Title:
MERITA BANK LTD, NEW YORK
BRANCH
By
--------------------------------
Title:
By
--------------------------------
Title:
MERRILL LYNCH PRIME RATE
PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By
--------------------------------
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By
--------------------------------
Title:
<PAGE> 190
160
METROPOLITAN LIFE
By
--------------------------------
Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
--------------------------------
Title:
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO
(a unit of Chase Manhattan Bank)
By
--------------------------------
Title:
PILGRIM AMERICA PRIME RATE
TRUST
By
--------------------------------
Title:
PNC BANK, NATIONAL
ASSOCIATION
By
--------------------------------
Title:
<PAGE> 191
161
PPM AMERICA, INC.,
as attorney in fact, on behalf of
JACKSON NATIONAL LIFE
INSURANCE COMPANY
By
--------------------------------
Title:
PROTECTIVE LIFE INSURANCE
COMPANY
By
--------------------------------
Title:
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.
By its Managing Director
ABN TRUSTCOMPANY (NEDERLAND) B.V.
By
--------------------------------
Title:
ROYALTON
By its Investment Advisor
PACIFIC INV. MGT. CO.
By
--------------------------------
Title:
<PAGE> 192
162
THE SAKURA BANK, LIMITED, NEW
YORK BRANCH
By
--------------------------------
Title:
SENIOR DEBT PORTFOLIO
By Boston Management and Research
as Investment Advisor
By
--------------------------------
Title:
SIGNET BANK
By
--------------------------------
Title:
SOCIETE GENERALE
By
--------------------------------
Title:
<PAGE> 193
163
SOCIETY NATIONAL BANK
By
--------------------------------
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
--------------------------------
Title:
THE TRAVELERS INSURANCE
COMPANY
By
--------------------------------
Title:
UNITED STATES NATIONAL BANK
OF OREGON
By
--------------------------------
Title:
<PAGE> 194
164
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By
--------------------------------
Title:
THE YASUDA TRUST AND BANKING
CO., LIMITED
By
--------------------------------
Title:
<PAGE> 1
EXHIBIT 10.2
[GOLDMAN SACHS LETTERHEAD]
CONFIRMATION
DATE: July 2,1997
TO: AMF Group Inc.
Telephone No.: 804 730 4400
Facsimile No.: 804 559 6276
Attention : Hai Tram
FROM: Goldman Sachs Capital Markets, L.P.
CC: Goldman Sachs Capital Markets, L.P.
Swap Administration
SUBJECT: Cap Transaction
REF NO: NUUC707010 (010000000) / (006 830 582)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Goldman Sachs Capital Markets, L.P. ("GSCM"),
guaranteed by The Goldman Sachs Group, L.P. ("Goldman Group"), and AMF Group
Inc. ("Counterparty"). This communication constitutes a "Confirmation" as
referred to in the Swap Agreement specified below and a "Rate Protection
Transaction" as referred to in the Cap Addendum specified below.
1. This Confirmation is subject to, and incorporates, the 1991 ISDA
Definitions (the "1991 Definitions"), published by the International Swaps and
Derivatives Association, Inc. ("ISDA"). If GSCM and Counterparty are parties
to an Interest Rate and Currency Exchange Agreement, ISDA Master Agreement or
other form of master agreement that sets forth general terms and conditions
applicable to swap transactions between GSCM and Counterparty (the "Swap
Agreement"), this Confirmation supplements, forms a part of, and is subject to,
the Swap Agreement. If GSCM and Counterparty are not yet parties to the Swap
Agreement, this Confirmation shall supplement, form part of, and be subject to,
the Swap Agreement upon its execution and delivery by GSCM and Counterparty.
Prior to the execution and delivery of such Swap Agreement, this Confirmation
alone shall constitute a complete and binding agreement with respect to the
Transaction. This Confirmation will be read and construed as one with the
executed Swap Agreement and all other outstanding Confirmations between the
parties, so that all such Confirmations and the executed Swap Agreement
constitute a single agreement between the parties.
<PAGE> 2
If the Swap Agreement has not yet been executed and delivered by GSCM and
Counterparty, this Confirmation is also subject to, and incorporates, the
definitions contained in Section 14 of the form of ISDA Master Agreement
(Multicurrency-Cross Border), but without any Schedule or other modifications
thereto (the "ISDA Agreement"), Paragraph (4) of the May 1989 Addendum to
Schedule to Interest Rate and Currency Exchange Agreement (the "Cap Addendum")
and Paragraph (5) of the July 1990 Addendum to Schedule to Interest Rate and
Currency Exchange Agreement (the "Options Addendum"), all as published by ISDA
(except that all references to "Swap Transactions" in the 1991 Definitions, the
Cap Addendum and the Options Addendum will be deemed to be references to
"Transactions").
All provisions contained in, or incorporated by reference to, the Swap
Agreement will govern this Confirmation except as expressly modified herein.
In the event of any inconsistency between this Confirmation and the 1991
Definitions, the Swap Agreement, the definitions contained in Section 14 of the
ISDA Agreement, Paragraph (4) of the Cap Addendum, or Paragraph (5) of the
Options Addendum, as the case may be. this Confirmation will control for the
purpose of the Transaction to which this Confirmation relates.
2. Each party will make each payment specified in this Confirmation as
being payable by it, not later than the due date for value on that date in the
place of the account specified below or otherwise specified in writing, in
freely transferable funds and in the manner customary for payments in the
required currency. If on any date amounts would otherwise be payable in the
same currency by each party to the other in respect of this Transaction, then,
on such date, each party's obligation to make payment of any such amount will
be automatically satisfied and discharged and, if the aggregate amount that
would otherwise have been payable by one party exceeds the aggregate amount
that would otherwise have been payable by the other party, replaced by an
obligation upon the party by whom the larger aggregate amount would have been
payable to pay to the other party the excess of the larger aggregate amount
over the smaller aggregate amount.
3. The following provisions will govern this Transaction until such time
as the Swap Agreement is executed and delivered by GSCM and Counterparty,
whereupon they shall be replaced by the terms of the Swap Agreement. If at any
time, a party (the "Defaulting Party") or its guarantor, if any, shall (i) fail
to make, when due, any payment under this Confirmation if such failure is not
remedied within three New York Business Days following written notice of such
failure or (ii) become subject to a Bankruptcy (as defined in Section 5(a)(vii)
of the ISDA Agreement), then the other party (the "Non-defaulting Party") shall
have the right to early terminate and liquidate this Transaction and all other
Specified Transactions then outstanding between the parties (the "Terminated
Transactions") and determine a net amount due in respect of the Terminated
Transactions in accordance with the early termination payment calculation
provisions of Section 6(e)(i) of the ISDA Agreement based on a payment measure
of Market Quotation and a payment method of the Second Method. The
Non-defaulting Party may exercise its right to early terminate and liquidate
the Terminated Transactions by written notice to the Defaulting Party, which
notice shall set forth the amount of the termination payment determined by the
Non-defaulting Party as set forth above. Such termination payment shall be due
and payable by no later than 1 New York Business Day following receipt of
written notice by the Defaulting Party. The Non-defaulting Party shall have
the right to set off the value of any collateral in its possession securing the
obligations of the Defaulting Party against amounts owed by the Defaulting
Party to it as determined above.
4. The terms of the particular Transaction to which this Confirmation
relates are as follows:
<TABLE>
<S> <C>
Notional Amount: USD 100,000,000
Trade Date: July 2, 1997
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Effective Date: July 7, 1997
Termination Date: March 31, 1998, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Floating Amounts:
- -----------------
Floating Rate Payer (Cap Seller): GSCM
Cap Rate: 7.00%
Floating Rate Payer Payment Dates: Quarterly, on each March 31, June 30,
September 30 and December 30,
commencing on December 30, 1997 and
ending on the Termination Date, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated Maturity: 3 Months
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count Fraction: Actual/360
Fixed Amounts:
- --------------
Fixed Rate Payer (Cap Buyer): Counterparty
Fixed Rate Payer Payment Date: July 7, 1997, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Fixed Amount: USD 15,000
Business Days: New York
Calculation Agent: GSCM, unless otherwise specified in the
Swap Agreement.
Governing Law: New York law, unless otherwise specified in
the Swap Agreement.
5. Documentation: ISDA Master Agreement with GSCM Schedule
6. Additional Provisions: None
7. Credit Support Documents: Standard Guaranty of The Goldman Sachs
Group, L.P.
</TABLE>
3
<PAGE> 4
<TABLE>
<S> <C>
8. Account Details:
USD Payments to GSCM:
For the Account of: Goldman Sachs Capital Markets, L.P.
Name of Bank: Citibank. N.A. New York
Account No: 40670834
Fed ABA No: 021000089
GSCM Inquiries Jennifer Kang, Swap Operations
Goldman Sachs Capital Markets, L.P.
Telephone No.: 212-902-1907
Facsimilie No.: 212-902-5692
Payments to Counterparty: In accordance with Counterparty's written
instructions as set forth below or otherwise
delivered to GSCM. GSCM shall make no
payments without having received (i) such
written instructions and (ii) a fully executed
facsimile copy of this Confirmation or other
written acceptance of the terms hereof.
</TABLE>
For the Account of:
Name of Bank:
Account No:
Attention:
ABA No.:
9. Offices:
(a) The Office of GSCM for this Transaction is 85 Broad Street,
New York, New York 10004.
(b) The Office of Counterparty for this Transaction is (please
provide):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4
<PAGE> 5
10. Counterparty hereby agrees (a) to check this Confirmation
(Reference No.: NUUC707010 (010000000) carefully and immediately upon receipt
so that errors or correctly sets forth the terms of the agreement between GSCM
and Counterparty with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy
to Swap Administration, facsimile No. 212-902-5692.
Very truly yours,
GOLDMAN SACHS CAPITAL MARKETS, L.P.
By: Goldman Sachs Capital Markets, Inc.,
General Partner
By: /s/ CHARLES DAVIS
-------------------------------------
Name:
Title:
Agreed and Accepted By:
AMF Group Inc.
By:
------------------------------------------
Name:
Title:
Counterparty Reference No.:
-----------------------
5
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 16,640
<SECURITIES> 0
<RECEIVABLES> 57,120
<ALLOWANCES> 4,086
<INVENTORY> 56,488
<CURRENT-ASSETS> 143,458
<PP&E> 743,675
<DEPRECIATION> 62,750
<TOTAL-ASSETS> 1,715,432
<CURRENT-LIABILITIES> 166,671
<BONDS> 1,146,415
0
0
<COMMON> 429,450
<OTHER-SE> (38,409)
<TOTAL-LIABILITY-AND-EQUITY> 1,715,432
<SALES> 318,068
<TOTAL-REVENUES> 318,068
<CGS> 86,084
<TOTAL-COSTS> 275,718
<OTHER-EXPENSES> 1,265
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 57,454
<INCOME-PRETAX> (16,369)
<INCOME-TAX> (4,191)
<INCOME-CONTINUING> (12,178)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (12,178)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<PAGE> 1
EXHIBIT 99
AMF BOWLING WORLDWIDE INTERNATIONAL HEADQUARTERS Post Office Box 15060
804.730.4000 Telephone 804.730.1313 Facsimile
8100 AMF Drive Richmond, Virginia 23227
Richmond, Virginia 23111
FOR IMMEDIATE RELEASE CONTACT: STEPHEN E. HARE
AUGUST 14, 1997 CHIEF FINANCIAL OFFICER
(804) 730-4401
[AMF LOGO] EARNINGS RELEASE
AMF BOWLING WORLDWIDE REPORTS AN INCREASE OF 32% IN
OPERATING CASH FLOW FOR THE SECOND QUARTER
Richmond, VA, August 14, 1997 -- AMF Bowling Worldwide today reported revenue of
$160.5 million for the quarter ended June 30, 1997 compared with $114.8 million
for the second quarter of 1996, an increase of 39.8%. Operating cash flow
(earnings before net interest expense, income taxes, depreciation and
amortization, and other income and expenses, net, or "EBITDA") was $35.6
million in the current quarter compared with $26.9 million for the second
quarter of 1996, an increase of 32.3%. For the six months ended June 30, 1997,
the Company reported revenue of $318.1 million compared with $237.5 million for
the six months ended June 30, 1996, an increase of 33.9%. Operating cash flow
was $85.8 million for the six months ended June 30, 1997 compared with $65.8
million for the six months ended June 30, 1996, an increase of 30.4%. Operating
results for 1996 are presented on a pro forma basis to provide more meaningful
comparisons with 1997.
OPERATING RESULTS BY BUSINESS
AMF's Bowling Centers generated a revenue increase of 43.1% to $92.6 million and
an operating cash flow increase of 34.4% to $21.1 million for the second quarter
of 1997 versus 1996. Revenue and operating cash flow for the quarter ended June
30, 1997 were favorably impacted by the inclusion of results for the 130 bowling
centers acquired since May 1996, and by increases in lineage and average price
per game. EBITDA margin (EBITDA as a percent of revenue) declined from 24.3% in
1996 to 22.8% in 1997. Margins were reduced by the increased mix of U.S. bowling
centers which experience seasonally lower results during the second quarter than
international centers. In addition, certain international markets, especially
Japan, generated reduced EBITDA margins. For the six months ended June 30, 1997,
Bowling Centers generated revenue of $201.1 million and operating cash flow of
$63.0 million. This compares to revenue of $147.2 million and operating cash
flow of $48.3 million for the six months ended June 30, 1996, on a pro forma
basis. EBITDA margin declined for the six months ended June 30 from 32.8% in
1996 to 31.3% in 1997.
AMF's Bowling Products generated a revenue increase of 35.1% to $72.7 million
and an increase in operating cash flow of 43% to $19.3 million for the second
quarter of 1997 versus 1996. EBITDA margin increased from 25.1% in 1996 to 26.6%
in 1997. For the six months ended June 30, 1997, Bowling Products generated
revenue of $124.7 million and operating cash flow of $31.3 million. This
compares to revenue of $96.8 million and operating cash flow of $22.9 million
for the six months ended June 30, 1996, on a pro forma basis. EBITDA margin
improved for the six months ended June 30 from 23.7% in 1996 to 25.1% in 1997.
The improvement in operating performance for Bowling Products during the first
half of 1997 resulted primarily from increased levels of New Center Product
("NCP") shipments to several markets including China, Japan, and Malaysia. NCP
order rates remained strong during the second quarter, with a total backlog of
2,182 units as of June 30, 1997 versus 1,444 units as of June 30, 1996.
AMF ALWAYS MEANS FUN!
<PAGE> 2
PAGE 2 - AMF BOWLING WORLDWIDE REPORTS AN INCREASE OF 32% IN
OPERATING CASH FLOW FOR THE SECOND QUARTER
ACQUISITION PROGRAM
In May 1996, the Company launched an ongoing acquisition program for bowling
centers in the U.S. and selected international markets. On April 24, 1997, the
Company completed the acquisition of the American Recreation Centers chain
consisting of 43 bowling centers. In total since May 1996, the Company has
acquired 127 bowling centers in the U.S., including six during July, seven in
the United Kingdom and two in Australia. The combined purchase price for these
acquisitions was approximately $249.6 million and has been funded with a $40.0
million equity contribution from its institutional stockholders, $209.0 million
of borrowings from the Acquisition Facility under its Bank Credit Agreement,
and from internally generated cash of the Company. As a result of these
acquisitions, AMF owns or operates 327 U.S. and 87 international bowling
centers as of July 31, 1997.
JOINT VENTURES UPDATE
On April 21, 1997, AMF entered into a $40 million joint venture with Hong Leong
Corporation Limited, a Singapore-based conglomerate. The joint venture, owned
50% each by AMF and Hong Leong, initially plans to build and operate up to 20
bowling centers to be located in the Philippines, Malaysia, Indonesia,
Thailand, Vietnam and China. AMF will be the exclusive bowling equipment
supplier and will provide a variety of training and technical services to the
joint venture.
In June 1997, the Company signed an agreement to enter into a joint venture
arrangement of approximately $100 million with Playcenter S.A., a Sao
Paulo-based amusement and entertainment company. This joint venture to be owned
50% by the Company and 50% by Playcenter, is expected to build or assume
ownership of, and operate, up to 39 bowling centers in Brazil and Argentina
during the next four years.
The Company estimates its total investment in these joint ventures to
approximate $26 million and expects each joint venture to arrange construction
financing on a non-recourse basis to AMF.
FINANCING UPDATE
In May 1997, the Company completed an amendment to its $780 million Amended and
Restated Bank Credit Agreement to increase the flexibility and borrowing
capacity of its ongoing acquisition program. As a result, the Company increased
the availability for borrowings under its Acquisition Facility to $230 million.
As of July 31, 1997, $144 million was outstanding under this Acquisition
Facility.
AMF Bowling Worldwide, headquartered in Richmond, Virginia, is the largest owner
and operator of bowling centers in the world. AMF is also one of the world's
leading manufacturers and marketers of bowling products.
<PAGE> 3
AMF BOWLING WORLDWIDE (1)
FINANCIAL SUMMARY
(IN MILLIONS)
<TABLE>
<CAPTION>
QUARTER ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
------------------------------------- ---------------------------------------
1997 1996(2) 1997 1996(2)
---------------- --------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Revenue $160.5 $114.8 $318.1 $237.5
EBITDA(3) 35.6 26.9 85.8 65.8
</TABLE>
<TABLE>
<CAPTION>
CAPITALIZATION
--------------
JUNE 30, 1997 DECEMBER 31, 1996
------------------- ------------------------
<S> <C> <C>
Cash and Cash Equivalents $16.6 $43.6
=================== ========================
Debt:
Working Capital Facility $30.0 $--
Acquisition Facility 112.0 73.6
Term Loans 535.9 491.0
10 7/8% Senior Subordinated Notes 250.0 250.0
12 1/4% Senior Subordinated Discount Notes 291.4 274.7
Other Debt 2.0 2.0
------------------- ------------------------
Total Debt 1,221.3 1,091.3
Stockholder's Equity 391.4 408.7
------------------- ------------------------
Total Capitalization $1,612.7 $1,500.0
=================== ========================
</TABLE>
- -------------------------------
(1) AMF Group Holdings Inc.
(2) Pro forma operating results for 1996 have been presented to provide a
more meaningful comparison with 1997. The pro forma results include
operations for the Predecessor Company ("AMF Bowling Group") through
April 30, 1996 and for the Company ("AMF Group Holdings Inc.") since
May 1, 1996 (the closing date of the "Acquisition"). Pro forma
adjustments: (i) eliminate two bowling centers retained by the Sellers;
(ii) eliminate a one-time charge in April 1996 for special bonus
payments of $44 million which were substantially funded by the Sellers
prior to the Acquisition; and (iii) reclassify certain Bowling Centers
administrative costs of $0.7 million and $1.7 million and Bowling
Products administrative costs of $0.6 million and $2.1 million for the
three and six months ended June 30, 1996, respectively, to Corporate.
(3) Represents a measure of operating cash flow defined as earnings before
net interest expense, income taxes, depreciation and amortization, and
other income and expenses, net.
<PAGE> 4
AMF BOWLING WORLDWIDE (1)
SEGMENT INFORMATION
(IN MILLIONS)
<TABLE>
<CAPTION>
FIRST QUARTER SECOND QUARTER THIRD QUARTER FOURTH QUARTER YEAR
------------- -------------- ------------- -------------- ----
<S> <C> <C> <C> <C> <C>
1997 Revenue
- ------------
Bowling Centers $108.5 $92.6 $201.1
Bowling Products 52.0 72.7 124.7
Intersegment Elimination (2.9) (4.8) (7.7)
------- ------- -------
TOTAL $157.6 $160.5 $318.1
1996 Revenue(2)
- ------------
Bowling Centers $82.5 $64.7 $65.4 $94.7 $307.3
Bowling Products 43.0 53.8 68.8 86.5 252.1
Intersegment Elimination (2.8) (3.7) (2.4) (1.6) (10.5)
------- ------- ------- ------- -------
TOTAL $122.7 $114.8 $131.8 $179.6 $548.9
1997 EBITDA(3)
- -----------
Bowling Centers $41.9 $21.1 $63.0
Bowling Products 12.0 19.3 31.3
Corporate (3.6) (4.7) (8.3)
Intersegment Elimination (0.1) (0.1) (0.2)
------- ------- -------
TOTAL $50.2 $35.6 $85.8
1996 EBITDA (2) (3)
- -----------
Bowling Centers $32.6 $15.7 $15.4 $31.9 $95.6
Bowling Products 9.4 13.5 19.1 20.6 62.6
Corporate (2.5) (1.4) (2.3) (4.8) (11.0)
Intersegment Elimination (0.6) (0.9) 0.0 (0.2) (1.7)
------- ------- ------- ------- -------
TOTAL $38.9 $26.9 $32.2 $47.5 $145.5
</TABLE>
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See notes (1-3) to Financial Summary.
