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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 20, 1998
KSL RECREATION GROUP, INC.
(Exact name of Registrant as specified in its charter)
Commission File Number 333-31025
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Delaware 33-0747103
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(State or other jurisdiction of (IRS Employer ID Number)
incorporation or organization)
56-140 PGA Boulevard
La Quinta, California 92253
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(Address of principal executive offices) (Zip Code)
760/564-1088
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(Registrant's telephone number, including area code)
N/A
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(Former name, address and fiscal year, if changed since last report)
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KSL RECREATION GROUP, INC.
FORM 8-K
INDEX
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Page
Item 2. Acquisition or Disposition of Assets. . . . . . . . . . . . . . . . . 3
Item 5. Other Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Item 7. Financial Statements and Exhibits . . . . . . . . . . . . . . . . . . 5
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On April 21, 1998, KSL Recreation Group, Inc. ("Company"), through a
wholly-owned subsidiary, acquired substantially all of the assets and certain
liabilities of The Claremont, also known as the Claremont Resort & Spa (the
"Property"), a resort hotel located in Oakland, California, pursuant to an
Agreement of Purchase and Sale between Claremont Hotel, LLC, a Delaware
limited liability company, and Harsch Investment Corp., an Oregon corporation
("Sellers"), and the Company dated March 5, 1998 and as amended on April 6,
1998 ("Agreement"). The Company, by unanimous consent of the board of
directors, approved and assigned the Agreement and all right, title, interest
and obligations thereunder to a newly formed, wholly-owned subsidiary of the
Company, KSL Claremont Resort, Inc., a Delaware corporation formed on March
12, 1998. There is no relationship between the Sellers and the Company, nor
with any associates or affiliates of the Company.
The purchase price of the Property, including the real property,
improvements, personal property and certain liabilities, was approximately
$88 million paid in cash (exclusive of closing costs). The acquisition was
accounted for using the purchase method of accounting and was financed under
the revolving credit portion of the Company's credit facility pursuant to the
Credit Agreement among the Company, various financial institutions,
Donaldson, Lufkin & Jenrette Securities Corporation, The Bank of Nova Scotia
and BancAmerica Securities, Inc. dated April 30, 1997.
The Property is situated on approximately twenty-two acres in the San
Francisco Bay Area and features 279 luxury hotel rooms which include a
forty-room wing equipped with high-speed Internet access for business
travelers, four restaurants including fine dining, a 32,000 square foot
conference center, two pools, three spas, ten tennis courts, a pool and
tennis club with approximately 960 members, and a complete European-style Spa
and Fitness Center. The historic Claremont Hotel was built in 1915 and
approximately $51 million in renovations, additions and upgrades have been
made since 1978. The Sellers acquired the Property in 1954. The Company is
only the fourth owner of the Property.
The Company intends to continue to operate the Property as a resort
hotel and spa.
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ITEM 5. OTHER EVENTS
On April 20, 1998, the Company entered into an Amended and Restated
Credit Agreement ("Restated Credit Facility") with various financial
institutions, Donaldson, Lufkin & Jenrette Securities Corporation, The Bank
of Nova Scotia and BancAmerica Securities, Inc. The terms of the Restated
Credit Facility provide for an increase in the revolving loan capacity of
$100 million thus increasing the total revolving loan capacity to $275
million (the "Revolving Credit Facility"). The term loan amount of $100
million (the "Term Loan Facility") remains unchanged.
The interest rate under the Revolving Credit Facility is determined at
the option of the Company from either LIBOR or the alternate base rate
("ABR"). ABR is the highest of (i) the Administrative Agent's Prime Rate and
(ii) the Federal Funds Effective Rate plus one-half of 1%. The applicable
margin to LIBOR varies from 0.625% to 2.250%, and the applicable margin to
the ABR varies from 0.000% to 1.250%. In both cases, the applicable margin
is determined by the pro forma Leverage Ratio at the end of each quarter.
The loans under the Term Loan Facility are comprised of Term A Loans
($50 million) and Term B Loans ($50 million). The interest rate for the Term
A Loans is determined at the option of the Company from either LIBOR or the
ABR. Previously the applicable margin to LIBOR was 2.750% and the applicable
margin to the ABR was 1.750%. Under the Restated Credit Facility for Term A
Loans, the applicable margin to LIBOR varies from 1.750% to 2.500%, and the
applicable margin to the ABR varies from 0.500% to 1.250%. In both cases,
the applicable margin is determined by the pro forma Leverage Ratio at the
end of each quarter.
The interest rate for the Term B Loans is determined at the option of
the Company from either LIBOR or the ABR. Previously the applicable margin
to LIBOR was 3.000% and the applicable margin to the ABR was 2.000%. Under
the Restated Credit Facility for Term B Loans, the applicable margin to LIBOR
varies from 1.750% to 2.500%, and the applicable margin to the ABR varies
from 0.500% to 1.250%. In both cases, the applicable margin is determined by
the pro forma Leverage Ratio at the end of each quarter.
There are no other material changes in the Restated Credit Facility.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
As of the date of filing of this Current Report on Form 8-K, it is
impracticable for the Company to provide the financial statements required by
this Item 7(a). In accordance with Item 7(a) of Form 8-K, such financial
statements shall be filed by amendment to this Form 8-K no later than sixty (60)
days after May 5, 1998.
(b) Pro Forma Financial Information
As of the date of filing of this Current Report on Form 8-K, it is
impracticable for the Company to provide the financial statements required by
this Item 7(b). In accordance with Item 7(b) of Form 8-K, such financial
statements shall be filed by amendment to this Form 8-K no later than sixty (60)
days after May 5, 1998.
(c) Exhibits
* 10.1 Agreement of Purchase and Sale between Claremont Hotel,
LLC, Harsch Investment Corp. and KSL Recreation Group,
Inc. dated March 5, 1998
* 10.2 First Amendment Agreement of Purchase and Sale between
Claremont Hotel, LLC, Harsch Investment Corp. and KSL
Recreation Group, Inc. dated April 6, 1998
* 10.3 Second Amendment Agreement of Purchase and Sale between
Claremont Hotel, LLC, Harsch Investment Corp. and KSL
Recreation Group, Inc. dated April 20, 1998
10.4 Credit Agreement, dated as of April 30, 1997, among KSL
Recreation Group, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation, as a co-syndication agent and
documentation agent, The Bank of Nova Scotia, as a
co-syndication agent and administrative agent, and
BancAmerica Securities, Inc., as syndication agent, filed
as Exhibit 10.1 to the Company's Registration Statement on
Form S-4, File No. 333-31025, is hereby incorporated by
reference.
* 10.5 Amended and Restated Credit Agreement, dated as of April 20,
1998, among KSL Recreation Group, Inc. and Donaldson, Lufkin
& Jenrette Securities Corporation, as a co-syndication agent
and documentation agent, The Bank of Nova Scotia, as a
co-syndication agent and administrative agent, and
BancAmerica Securities, Inc., as syndication agent.
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
KSL RECREATION GROUP, INC.
By: /s/
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John K. Saer, Jr.,
Vice President, Chief Financial
Officer and Treasurer
Date: May 5, 1998
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Exhibit 10.1
AGREEMENT OF PURCHASE AND SALE
This Agreement is made and entered into as of this 5th day of
March, 1998, by and between CLAREMONT HOTEL L.L.C., a Delaware limited
liability company and HARSCH INVESTMENT CORP., an Oregon corporation
(Claremont Hotel L.L.C. and Harsch Investment Corp. are hereinafter sometimes
collectively referred to as "Seller" and individually as "Claremont" and
"HIC", respectively), and KSL RECREATION GROUP, INC., a Delaware corporation
("Buyer").
RECITALS
A. Seller is the fee owner of certain real property located at 41
Tunnel Road in Oakland, California (the "Real Property", as further defined
in Section 1.32 and more particularly described in EXHIBIT A), and is the
owner of certain improvements and personal property located on the Real
Property consisting of, among other things, a hotel presently known as the
Claremont Resort & Spa (the "Hotel", as further defined in Section 1.16).
The Real Property and the Hotel are collectively referred to herein as the
"Property" (which is inclusive of the "HIC Property", as defined below).
B. Buyer desires to purchase the Property from Seller and Seller
is willing to sell the Property to Buyer upon and subject to the terms and
conditions of this Agreement.
C. Buyer and Seller desire to enter into this Agreement for the
purpose of providing for the consummation of the acquisition of the Property
by Buyer upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the respective agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1 "AGREEMENT" shall mean this Agreement of Purchase and Sale and
all future amendments and modifications hereto.
1.2 "ASSUMED CONTRACTS" means the Equipment Leases, Leases,
Service Contracts and Construction and Other Contracts listed on EXHIBITS B,
E, and G (exclusive, however, of any union, labor or collective bargaining
agreements and any hotel management or operating agreements).
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1.3 "AUTHORITIES" shall mean any governmental body or agency
having jurisdiction over the Hotel and/or Seller, including, without
limitation, the City of Oakland, the County of Alameda and the State of
California.
1.4 "CLAREMONT PROPERTY" shall mean all of the Property other than
the HIC Property.
1.5 "CLOSING" shall mean the consummation of the sale of the
Property to Buyer, which Closing shall occur on the Closing Date.
1.6 "CLOSING DATE" shall mean the date identified in Section 9.2,
which shall be the date on which the Deed is recorded in the Official Records
of Alameda County, State of California.
1.7 "CONSTRUCTION AND OTHER CONTRACTS" means all construction
contracts and other contracts and agreements including, without limitation,
design and decorating contracts, space planning contracts, construction
contracts, subcontracts and purchase orders, applications for expenditures,
letters of intent, utility contracts and water and sewer service contracts,
agreements with consultants, bonds, reservation service listing agreements,
parking contracts, advertising contracts, media purchase contracts, sales and
promotional agreements and like contracts and agreements relating to the
Hotel, together with all supplements, amendments and modifications thereof.
The term Construction and Other Contracts shall not include any management or
operating agreement for the Hotel (it being understood and agreed that any
such management or operating agreement shall be terminated at Closing by
Seller at its full cost and expense).
1.8 "DEED" shall have the meaning set forth in Section 9.3(a)(i).
1.9 "DEPOSIT" shall have the meaning set forth in Section
2.2(b)(i).
1.10 "EQUIPMENT LEASES" shall mean all of the equipment leases,
oral or written, in effect as of the date hereof with respect to the Hotel,
which are described in EXHIBIT B.
1.11 "FF&E" shall mean all of the furniture, fixtures and equipment
owned by Seller and located in the Hotel as of the date hereof, which are
described in EXHIBITS C AND C-1, with such additions and deletions as may
hereafter occur or may have previously occurred in the ordinary course of
business; provided, however, that FF&E shall not include the Operating
Equipment and the Operating Supplies. Notwithstanding the foregoing, Seller
and Buyer acknowledge and agree that as of the date of this Agreement, the
parties have not finalized EXHIBIT C. During the Inspection Period, Buyer
shall hire, on behalf of Buyer and Seller, Deloitte & Touche LLP or its
designee, reasonably approved by Seller, to inventory the FF&E for the
benefit of Seller and Buyer ("FF&E Inventory"). Upon completion of the FF&E
Inventory, Seller agrees to reimburse Buyer for fifty percent (50%) of the
cost of physical inventory taking of the FF&E Inventory, up to a maximum of
Seven Thousand Five Hundred Dollars ($7,500.00). Seller shall prepare and
deliver EXHIBIT C-1 to Buyer prior to the expiration of the Inspection
Period. Seller and Buyer agree to use good faith efforts to approve the form
of EXHIBITS C AND C-1 and to amend this Agreement to attach EXHIBITS C AND
C-1 prior to the expiration of the Inspection Period.
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1.12 "FINANCIAL INFORMATION" shall mean year-end operating
statements for the Hotel for the years 1993, 1994, 1995, 1996 and 1997 and
monthly year-to-date statements for the current year.
1.13 "GOVERNMENTAL REGULATIONS" shall mean any laws, ordinances,
rules, requirements, resolutions, policy statements and regulations
(including, without limitation, those relating to land use, subdivision,
zoning, environmental, toxic or hazardous waste, occupational health and
safety, water, earthquake hazard, disabled persons and zoning and fire codes)
of the Authorities bearing on the construction, alterations, rehabilitation,
maintenance, use, operation or sale of the Hotel.
1.14 "HAZARDOUS MATERIAL" shall mean any radioactive, hazardous or
toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States
Government. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) defined as a "hazardous waste," "extremely
hazardous waste" or "restricted hazardous waste" or "hazardous substance"
under any state or federal law, (ii) asbestos, (iii) lead, and/or (iv)
petroleum.
1.15 "HIC PROPERTY" shall mean: (i) the portion of the Real
Property owned in fee by HIC and described in EXHIBIT A-2; (ii) the Liquor
Assets; and (iii) the portion of the Personal Property consisting of all
chinaware, glassware, silverware and linen.
1.16 "HOTEL" shall mean with respect to the Property: (i) all
buildings, structures, fixtures, landscaping and other improvements
constructed on or affixed to the Property; (ii) the Service Contracts, the
Leases, the Equipment Leases and the Intangibles, if and to the extent such
Service Contracts, Leases, Equipment Leases, and Intangibles are assignable
or the necessary approvals for the assignment thereof to Buyer can be
reasonably obtained in accordance with the terms and provisions contained in
this Agreement; (iii) the FF&E, the Operating Equipment, the Operating
Supplies and the Personal Property; (iv) all accounts receivable (subject to
proration and adjustment as provided in Sections 9.4 and 9.5), and all
reservation deposits and advance or prepaid payments or deposits relating to
the operation of the Hotel and to be credited to Buyer in accordance with
Section 9.4; (v) all books and records relating to the operation of the
Hotel, including, without limitation, applicable computer software owned by
or licensed to Seller (to the extent assignable or to the extent that the
necessary approvals for the assignment thereof to Buyer can be reasonably
obtained in accordance with the terms and conditions contained in this
Agreement); (vi) all permits, licenses, warranties and guarantees obtained by
Seller in connection with the ownership, construction or operation of the
Property (to the extent assignable or to the extent that the necessary
approvals for the assignment thereof to Buyer can be reasonably obtained in
accordance with the terms and conditions contained in this Agreement, but
excluding in any event the Liquor Licenses issued to or otherwise held by
HIC); and (vii) to the extent assignable, all Construction and Other
Contracts.
1.17 "INSPECTION PERIOD" shall mean the period commencing on the
date of this Agreement and expiring at 5:00 p.m. (San Francisco time) on
April 6, 1998.
1.18 "INTANGIBLES" shall mean any trademarks, service marks,
copyrights, trademark, service mark and copyright registrations, applications
for trademark and service mark
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registrations, business and trade names or logos, patent and patent
applications, which are owned by or licensed to Seller as of the date hereof
and used in connection with the operation of the Hotel, which are described
in EXHIBIT D.
1.19 "LEASES" shall mean all of the leases, licenses, concessions,
operating agreements and other similar occupancy agreements, oral or written,
in effect as of the date hereof with respect to the Property, which are
described in EXHIBIT E.
1.20 "LEGAL REQUIREMENTS" shall mean any of the following which are
applicable to the ownership and/or operation of the Property: all laws,
statutes, rules, regulations, ordinances, codes, orders, decrees or rulings
of any governmental or judicial authority, including, without limitation, all
zoning, land use, subdivision, redevelopment, environmental, health, energy,
building and construction laws and regulations affecting the use, occupancy
or operation of the Hotel; any permit or occupancy certificate issued
pursuant to any law, statute, rule, regulation, ordinance, code; and any
other order or decree by any public officer having jurisdiction over the
Property.
1.21 "LIQUOR ASSETS" shall mean the Liquor Licenses owned by HIC
and the inventory of alcoholic beverages owned by Claremont as of the Closing
Date which are saleable in connection with the operation of the Hotel or the
restaurants, bars, function rooms and guest rooms located therein.
1.22 "LIQUOR ESCROW" shall have the meaning set forth in Section
11.5(c).
1.23 "LIQUOR LICENSES" shall mean all of the licenses pursuant to
which the sale of alcoholic beverages is permitted in the Hotel or the
restaurants, bars, function rooms or guest rooms located therein, issued by
the Department of Alcoholic Beverage Control of the State of California,
which licenses are owned by HIC.
1.24 "OPERATING EQUIPMENT" shall mean all of the vehicles owned or
leased by Seller as of the date hereof and used in the operation or
maintenance of the Hotel, which are described in EXHIBIT F; provided,
however, that Operating Equipment shall not include FF&E and Operating
Supplies.
1.25 "OPERATING SUPPLIES" shall mean all items owned by Seller on
the Closing Date and used in the operation or maintenance of the Hotel and
which are consumable or, when once used, are disposed of, including, without
limitation, spa products, supplies for housekeeping, food and beverage
service, pool and recreation areas, engineering, accounting and office use,
together with paper supplies, inventories of food and beverages and
miscellaneous general supply items.
1.26 "PERSON" shall mean any natural person, corporation,
partnership, limited liability company, firm, association, government,
governmental agency or any other entity and whether acting in an individual,
fiduciary or other capacity.
1.27 "PERSONAL PROPERTY" shall mean all of the personal property
(tangible or intangible) owned by Seller as of the date hereof and used in
connection with the operation or maintenance of the Hotel, including, without
limitation, the FF&E described in EXHIBIT C; the
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chinaware, glassware, silverware and linens described in EXHIBIT C-1; all
books and records, computers, computer files and software related to Hotel
operations, accounting, bookings, inventory control and related matters; the
Operating Equipment described in EXHIBIT F; the Operating Supplies; the
Intangibles described in EXHIBIT D; the artwork located or displayed on the
Property (provided, however, the artwork described on EXHIBIT F-1 is to be
acquired by Buyer on the terms of and subject to the special conditions set
forth in Section 11.6.); and provided that, the items described in EXHIBITS
F-2, F-3, and F-4 shall not be included in the purchase and sale transaction
contemplated hereby.
1.28 "PERMITTED EXCEPTIONS" shall have the meaning set forth in
Sections 3.1(a).
1.29 "PRELIMINARY TITLE REPORT" shall mean the preliminary title
report issued by the Title Company for the Property, dated November 5, 1997,
under the Title Company's order No. SP157372, which shall be updated upon
execution of this Agreement.
1.30 "PROPERTY" shall have the meaning set forth in Recital A.
1.31 "PURCHASE PRICE" shall have the meaning set forth in Section
2.2(a).
1.32 "REAL PROPERTY" shall mean the real property as more
particularly described in EXHIBIT A, including, without limitation, to the
extent owned by Seller, all minerals, oil, gas and other hydrocarbon
substances on and under the Real Property, as well as all development rights,
air rights, water, water rights and water stock relating to the Real Property
and any other easements, rights of way or appurtenances used in connection
with the beneficial use and enjoyment of the Real Property. The portion of
the Real Property described in EXHIBIT A-1 is owned in fee by Claremont, and
the portion of the Real Property described in EXHIBIT A-2 is owned in fee by
HIC.
1.33 "SERVICE CONTRACTS" shall mean all of the service, maintenance
and other similar contracts, oral or written, in effect as of the date hereof
with respect to the Property, which are described in Exhibit G.
1.34 "SURVEY" shall have the meaning set forth in Section 3.1(a).
1.35 "TITLE COMPANY" shall mean First American Title Guaranty
Company.
1.36 "TITLE POLICY" shall mean an ALTA Owner's Policy of Title
Insurance (1970 Form B), in the amount of the Purchase Price showing Buyer as
the fee owner of the Real Property, subject only to the Permitted Exceptions
and with such endorsements as Buyer may reasonably designate during the
Inspection Period.
ARTICLE II
PURCHASE AND SALE
2.1 SALE. Seller agrees to sell and assign (as applicable) to
Buyer, and Buyer agrees to purchase from Seller and accept the assignment
from Seller of, all of Seller's right, title
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and interest in and to the Property, subject to the terms, covenants and
conditions set forth herein.
2.2 PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") of the Hotel shall
be Eighty-Eight Million Dollars ($88,000,000.00). The Purchase Price shall
be subject to certain closing adjustments and prorations as provided in
Article IX. Seller and Buyer hereby agree that the Purchase Price shall be
allocated as set forth on SCHEDULE 1 attached hereto; provided, however,
Seller and Buyer acknowledge and agree that as of the date of this Agreement,
the parties have not finalized SCHEDULE 1. Seller and Buyer agree to use
good faith efforts to approve the form of SCHEDULE 1 and to amend this
Agreement to attach SCHEDULE 1 prior to the expiration of the Inspection
Period.
(b) The Purchase Price shall be paid as follows:
(i) Upon the execution of this Agreement by both Buyer and
Seller, Buyer shall deposit in escrow with Title Company a cash payment in an
amount equal to Four Million, Four Hundred Thousand Dollars ($4,400,000.00)
(the "Deposit"). The Deposit shall be held in an interest bearing account
approved by Seller and Buyer, and all interest thereon shall be deemed a part
of the Deposit.
(ii) In the event the sale of the Property as contemplated
hereunder is consummated, the Deposit shall be paid to Seller and credited
against the Purchase Price. In the event this Agreement is terminated by
Buyer in accordance with Buyer's right to do so under the terms and
provisions hereof or because of a default hereunder by Seller, the Deposit
shall be promptly returned to Buyer. IN THE EVENT THAT BUYER SHOULD
OTHERWISE FAIL TO CONSUMMATE THE PURCHASE OF THE PROPERTY FOR ANY REASON,
EXCEPT SELLER'S DEFAULT OR THE TERMINATION OF THIS AGREEMENT BY SELLER OR
BUYER PURSUANT TO A RIGHT TO DO SO UNDER THE TERMS AND PROVISIONS HEREOF,
THEN THE DEPOSIT SHALL BE PROMPTLY PAID BY TITLE COMPANY TO SELLER AS
LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN
THE EVENT OF A FAILURE BY BUYER TO CONSUMMATE THIS SALE AS SPECIFIED ABOVE,
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
NEGOTIATION AND CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT, THE PARTIES HAVE AGREED UPON THE AMOUNT OF THE DEPOSIT, AS A
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT AND
AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN THE EVENT
OF A DEFAULT HEREUNDER BY BUYER; PROVIDED, HOWEVER, THAT THE DEPOSIT SHALL IN
NO EVENT LIMIT BUYER'S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 11.1 AND
12.8, FOR WHICH THERE SHALL BE NO MANDATORY LIMITATIONS. IN PLACING THEIR
INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL
WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS
LIQUIDATED DAMAGES PROVISION.
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INITIALS: SELLER ________ SELLER ________ BUYER _______
In the event that Seller should fail to consummate this Agreement
for any reason, except Buyer's default or a termination of this Agreement by
Buyer or Seller pursuant to a right to do so under the terms and provisions
hereof, Buyer, as its sole and exclusive remedy, may elect any one of the
following remedies: (A) to terminate this Agreement by written notice to
Seller and receive a prompt return of the Deposit, and Seller shall pay to
Buyer any out-of-pocket title, escrow, legal and inspection fees, costs and
expenses actually incurred by Buyer in connection with the performance of its
due diligence review of the Property and the negotiation and performance of
this Agreement, up to a maximum of Seventy-Five Thousand Dollars ($75,000);
or (B) to sue for specific performance, without the right to seek damages.
(iii) The Purchase Price, less any portion of the Deposit
that may have been applied to the Purchase Price, shall be paid to Seller in
immediately available funds at the Closing, subject to any closing
adjustments and prorations as set forth in this Agreement.
ARTICLE III
BUYER'S INSPECTION PERIOD
3.1 BUYER'S INSPECTION PERIOD. Buyer's obligation to purchase the
Property is conditioned upon Buyer's review and approval (at Buyer's sole
cost and expense) during the Inspection Period of the following:
(a) The Preliminary Title Report and copies of all exceptions to
title described therein; and a boundary survey of the Property prepared by
Bates & Bailey, dated December 15, 1982, and an updated boundary survey
prepared by Bates & Bailey which will reflect the easements of record and the
improvements, if any, within the vicinity of the boundaries of such easements
(together, the "Survey"). If any exceptions appear in the Preliminary Title
Report, other than the standard printed exceptions set forth in the ALTA
Owner's Policy 1970 form B of title insurance, or on the Survey that affect
the Property and are unacceptable to Buyer, Buyer shall, on or before ten
(10) days after Seller delivers the updated Survey to Buyer, notify Seller in
writing of such fact and the reasons therefor ("Buyer's Title Objections").
Upon the expiration of said ten (10) day period, Buyer shall be deemed to
have accepted all exceptions to title and all other matters shown on the
Preliminary Title Report and Survey (except for the Buyer's Title Objections
if the same are timely raised) and such exceptions shall be included in the
term "Permitted Exceptions" as used herein. Within five (5) days after
receiving Buyer's Title Objections, Seller shall notify Buyer whether it is
willing to eliminate or modify Buyer's Title Objections to the reasonable
satisfaction of Buyer. Notwithstanding anything to the contrary herein,
Seller shall have no obligation to bring any action or proceeding or
otherwise incur any expense whatsoever to eliminate or modify any of Buyer's
Title Objections unless it notifies Buyer that it is willing to eliminate or
modify Buyer's Title Objections. In the event Seller notifies Buyer that it
is unwilling to so eliminate or modify Buyer's Title Objections (or fails to
provide notice in the five (5) day period which failure shall be deemed
notice, at the end of such period, of Seller's unwillingness) or having
notified Buyer of its willingness, is unable to eliminate or modify Buyer's
Title Objections to the reasonable satisfaction of Buyer prior to the Closing
Date, Buyer (A) may (as its sole and exclusive remedy) terminate this
Agreement by
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notice in writing to Seller by the earlier to occur of (i) the Closing Date
or (ii) five (5) days following notice (or deemed notice) from Seller that it
is unwilling or unable to eliminate or modify Buyer's Title Objections, or
(B) may accept such title as Seller can deliver, without any reduction in the
Purchase Price, in which event such uncured Buyer's Title Objections shall be
included in the term "Permitted Exceptions" as used herein. If Buyer does
not elect to terminate within the period described in the immediately
preceding sentence, Buyer shall be deemed to have accepted all exceptions to
title and all other matters shown on the Preliminary Title Report and Survey
(except for any Buyer's Title Objections which are timely raised by Buyer and
which Seller has agreed to eliminate or modify and has in fact been able to
eliminate or modify) and such exceptions shall be included in the term
"Permitted Exceptions" as used herein. In the event of the termination of
this Agreement pursuant to this Section 3.1(a), Buyer shall pay all of the
title and escrow charges, if any, the Deposit shall be promptly returned to
Buyer, and neither party shall have any further rights or obligations
hereunder (except pursuant to the indemnity contained in Section 11.1).
The term "Permitted Exceptions" as used in this Agreement shall
include: (i) any easement, right of way, encroachment, conflict,
discrepancy, overlapping or improvements, protrusion, lien, encumbrance,
restriction, condition, covenant or other matter with respect to the Property
that is reflected on the Survey or the Preliminary Title Report and which
Buyer accepts or to which Buyer fails to timely object pursuant to the
provisions of this Section 3.1(a), (ii) non-delinquent liens for real estate
taxes and assessments; (iii) the rights and interests of parties claiming
under the Leases; (iv) any exceptions to title which would be revealed or
disclosed by the public records or by a physical inspection and/or accurate
survey of the Property; and (v) all zoning ordinances and regulations and any
other laws, ordinances or environmental regulations restricting or regulating
the use, occupancy or enjoyment of the Property). The foregoing enumeration
of Permitted Exceptions shall in no event diminish or otherwise affect
Buyer's right to terminate this Agreement for any reason during the
Inspection Period pursuant to Section 3.2.
Notwithstanding the foregoing, Buyer, at its sole cost and expense,
shall use best efforts to obtain prior to the Closing a revised Survey that
will meet the Title Company's minimum requirements for issuance of the Title
Policy with a deletion of the general survey exception (the "Expanded
Survey"). Seller shall reasonably cooperate with Buyer to obtain the
Expanded Survey. Buyer shall have until the later of the end of the
Inspection Period or two (2) business days following completion of such
Expanded Survey to notify Seller in writing ("Expanded Survey Objection
Notice") of any survey matter which (i) is either not depicted on the prior
Survey or contradicts the prior Survey, AND (ii) would materially and
adversely affect Buyer's use and operation of the Property (the "Expanded
Survey Objections"). Seller shall have two (2) business days after receipt
of such Expanded Survey Objection Notice to give Buyer: (a) written notice
that Seller shall use all reasonable efforts to remove all the Expanded
Survey Objections from title on or before the Closing Date; or (b) written
notice that Seller elects not to cause the Expanded Survey Objections to be
removed. If Seller gives Buyer notice under clause (b), Buyer shall have two
(2) business days to elect to proceed with the purchase or terminate this
Agreement. If Buyer shall fail to give Seller written notice of its election
within said two (2) business days, Buyer shall be deemed to have elected to
waive its right to terminate this Agreement pursuant to the provisions of
this Paragraph. In the event Buyer elects to terminate this Agreement in
accordance with the terms and conditions of this Paragraph, Buyer shall pay
all of the title and escrow charges, if any, the Deposit shall be promptly
returned to
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Buyer, and neither party shall have any further rights or obligations
hereunder, except pursuant to the indemnity contained in Section 11.1 hereof.
In the event that Buyer does not obtain an Expanded Survey on or
before the Closing Date, Buyer shall have the right to elect to extend the
Closing Date to April 27, 1998, in order to obtain the Expanded Survey.
Notwithstanding anything to the contrary contained herein, in the event that
Buyer either does not obtain the Expanded Survey or have sufficient time to
review and approve the Expanded Survey pursuant to the timeframes set forth
above prior to April 27, 1998, Buyer shall either elect to proceed with the
purchase or terminate this Agreement on April 27, 1998.
(b) The Service Contracts, the Leases, the Equipment Leases, the
Intangibles and the Construction and Other Contracts.
(c) The FF&E, the Operating Equipment, the Operating Supplies, and
all other Personal Property.
(d) The Legal Requirements and the Property's compliance
therewith, and all governmental permits, approvals and certificates relating
to the Property, or the construction, operation, use or occupancy of any part
thereof, including, without limitation, all building permits, certificates of
occupancy and all other permits.
(e) The Financial Information and the Hotel's current accounts
receivable, current inventories, current and future bookings of guestrooms
and deposits, and all other similar books and records relating to the
operation of the Property; and all matters with respect to the market
conditions relating to comparable hotels, which Buyer shall be responsible
for obtaining at Buyer's sole expense.
(f) The physical and environmental condition of the Property,
including, without limitation, environmental reports prepared for Seller and
listed on SCHEDULE 2 attached hereto (collectively, the "Environmental
Reports") and any other hazardous substances assessment of the Property to be
obtained by Buyer at Buyer's sole expense and prepared by an engineer or
environmental auditor selected or approved by Buyer, the interior, the
exterior, the structure, the mechanical, the electrical, HVAC, and plumbing
components, the roofs, the paving, the utilities, the Plans and
Specifications and all other functional aspects of the Property. On or
before three (3) days from the date of this Agreement, Seller shall deliver
to Buyer copies of the Environmental Reports, plans and specifications for
the buildings and improvements on the Property, engineering studies, and all
other similar reports or assessments relating to the physical and
environmental condition of the Property, including, without limitation, all
maintenance records (which shall be made available for Buyer's review at the
Property) and soils and/or environmental reports and studies, but with regard
to all of the foregoing only to the extent such items are in Seller's
possession or under Seller's control.
(g) Copies of the bills issued for the most recent tax year for
all real property taxes and personal property taxes affecting the Property.
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(h) Copies of the transferable membership documentation, the 1985
Membership Application and Rules and the 1995 Membership Application and
Rules relating to the pool and tennis club and access to members' files.
(i) Any other matters Buyer deems relevant to the Property.
Except as otherwise specifically provided herein in this Section
3.1, the information and/or items described in the foregoing subparagraphs
(b), (c), (e), (f), (g) and (h) of this Section 3.1 shall be delivered by
Seller to Buyer on or before three (3) days from the date of this Agreement.
To the extent Buyer identifies any information, documentation, or other items
which fall within Subparagraph (i) above and which are in the possession or
reasonable control of Seller, such information, documentation and/or items
shall be delivered by Seller to Buyer within three (3) business days after
Seller's receipt of such request.
3.2 BUYER'S NOTICE TO SELLER. Except for Buyer's review of the
Preliminary Title Report, the Survey and the Expanded Survey, which shall be
governed by the provisions of Sections 3.1(a), Buyer shall notify Seller in
writing on or before the expiration of the Inspection Period which (if any)
of the conditions for the Property set forth in Section 3.1 have not been
fulfilled to Buyer's satisfaction. If any of such conditions are not
fulfilled to Buyer's satisfaction, or if any other aspect of the Property is
not approved by Buyer, as determined by Buyer in its sole discretion, Buyer
shall have the right in its sole election, to be exercised by written notice
to Seller on or before the expiration of the Inspection Period, either (i) to
waive the condition or other item in question and proceed to Closing, or (ii)
to terminate this Agreement. Notwithstanding anything to the contrary
contained herein, the failure by Buyer to provide any such notices to Seller
regarding the waiver or satisfaction of any of the conditions set forth above
in Section 3.1 on or before the expiration of the Inspection Period shall be
deemed to be an election by Buyer to waive any such condition and to proceed
with the Closing. In the event the Buyer elects or is deemed to have elected
to have waived its right to terminate this Agreement during the Inspection
Period, the Deposit shall become nonrefundable to Buyer.
In the event Buyer elects to terminate this Agreement in accordance
with this Section 3.2, Buyer shall pay all of the title and escrow charges,
if any, the Deposit shall be promptly returned to Buyer, and neither party
shall have any further rights or obligations hereunder, except pursuant to
the indemnity contained in Section 11.1 hereof.
ARTICLE IV
CONDITIONS TO BUYER'S OBLIGATIONS
4.1 CONDITIONS TO BUYER'S OBLIGATIONS. The obligation of Buyer to
purchase the Property shall be subject to the satisfaction, on or before the
Closing Date, of each of the following conditions, which are intended solely
for the benefit of Buyer:
(a) NO TERMINATION. Buyer shall not have exercised any
termination right provided in this Agreement.
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(b) DELIVERY OF DOCUMENTS. Seller, Claremont or HIC, as the case
may be, shall have delivered to Buyer or to the Title Company, as applicable,
all of the items listed in Section 9.3(a). Seller, Claremont or HIC, as the
case may be, shall have delivered such other documents not inconsistent with
the terms of this Agreement as are customary in order to carry out the
purchase and sale of the Property in accordance with the terms of this
Agreement.
(c) TITLE POLICY. The Title Company shall have issued or be
prepared to issue the Title Policy to Buyer at the Closing.
(d) TITLE TO PERSONAL PROPERTY. Buyer shall have received
evidence reasonably satisfactory to Buyer that the Personal Property shall be
conveyed to Buyer at the Closing, free of any liens, encumbrances or
interests of third parties or of Seller (except for equipment lessors of any
Operating Equipment being leased by Seller and except for any software
licensing restrictions disclosed to Buyer during the Inspection Period).
(e) REPRESENTATIONS. All of Seller's, Claremont's or HIC's
representations contained in or made pursuant to this Agreement shall have
been true and correct in all material respects when made and shall be true
and correct in all material respects as of the Closing Date as if made on the
Closing Date.
(f) COMPLIANCE. Seller shall have performed, observed and
complied with all covenants, agreements and conditions to be performed by
Seller pursuant to this Agreement.
If any of the foregoing conditions set forth in this Section 4.1
are not satisfied in Buyer's sole discretion on or before the Closing Date,
then Buyer may terminate this Agreement by written notice to Seller. If
Buyer elects to terminate this Agreement, Buyer shall pay all of the title
and escrow charges, if any, the Deposit shall be promptly returned to Buyer,
and neither party shall have any further rights or obligations hereunder,
except pursuant to the indemnity contained in Section 11.1 hereof.
ARTICLE V
CONDITIONS TO SELLER'S OBLIGATIONS
5.1 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller
to sell the Property to Buyer shall be subject to the satisfaction, on or
before the Closing Date, of each of the following conditions, which are
intended solely for the benefit of Seller:
(a) DELIVERY OF DOCUMENTS. Buyer shall have delivered to Seller
or to the Title Company, as applicable, all of the items listed in Section
9.3(b). Buyer shall have delivered such other documents not inconsistent with
the terms of this Agreement as are customary in order to carry out the
purchase and sale of the Property in accordance with the terms of this
Agreement.
(b) REPRESENTATIONS. All of Buyer's representations contained in
or made pursuant to this Agreement shall have been true and correct in all
material respects when made
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and shall be true and correct in all material respects as of the Closing Date
as if made on the Closing Date.
(c) COMPLIANCE. Buyer shall have performed, observed and complied
with all covenants, agreements and conditions to be performed by Buyer
pursuant to this Agreement.
ARTICLE VI
SELLER'S REPRESENTATIONS
6.1 REPRESENTATIONS OF SELLER. Seller, Claremont or HIC, as the
case may be, hereby represent to Buyer, as of the date of this Agreement and
the Closing Date, that:
(a) (i) Claremont is duly organized and legally existing under the
laws of the State of Delaware and HIC is duly organized and legally existing
under the laws of the State of Oregon and each of said companies is qualified
to do business in the State of California, (ii) the execution and delivery by
each of Claremont and HIC of, and each of Claremont's and HIC's performance
under, this Agreement are within said companies' respective powers and have
been duly authorized by all requisite corporate action, and (iii) the persons
executing this Agreement on behalf of each of Claremont and HIC have the
authority to do so.
(b) The execution and performance of this Agreement by each of
Claremont and HIC will not violate any provision of any agreement or judicial
order to which either Claremont or HIC is a party or to which either is
subject.
(c) To Seller's knowledge, the lists of Equipment Leases, Leases,
and Service Contracts attached as EXHIBITS B, E, and G, respectively, are
true and correct in all material respects, Seller is not in material default
under any such Equipment Leases, Leases or Service Contracts, and, as of the
date hereof, there are not any other equipment leases, leases or service
contracts affecting the Property except as described in such Exhibits. To
Seller's knowledge, the copies of the Equipment Leases, Leases and Services
Contracts delivered by Seller to Buyer in connection with this Agreement are
or will be true, correct and complete copies of such documents.
(d) To Seller's knowledge, Seller has not received written notice
from any of the Authorities that the Property is presently the subject of any
condemnation, assessment or similar proceeding or charge.
(e) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code of 1986 (i.e. Seller is not a non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign
estate as those terms are defined in said Section 1445 and the regulations
promulgated thereunder).
(f) To Seller's knowledge, Seller has not received written notice
from any of the Authorities that the Property is in violation of any law,
statute, ordinance, building or zoning regulation including, without
limitation, Governmental Regulations.
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(g) Except as set forth in SCHEDULE 3, there is no litigation that
has been instituted that would affect the Property and, to Seller's
knowledge, Seller has not received written notice of any proposed or
threatened litigation that would affect the Property.
(h) To Seller's knowledge, except as set forth in the Preliminary
Title Report, there are not any assessments for public improvements which
have been made against the Property, and Seller will inform Buyer of any such
assessments of which Seller has knowledge prior to the Closing Date.
(i) To Seller's knowledge, the Financial Information (i) has been
prepared in accordance with the books and records of Seller and in conformity
with generally accepted accounting principles, consistently applied, and (ii)
is true and correct in all material respects and accurately sets forth the
results of the operations of the Hotel in each of the periods covered thereby.
(j) To Claremont's knowledge with respect to the Claremont
Property, no Hazardous Material (including, without limitation,
asbestos-containing materials and PCBs) have been produced, disposed of or
stored in, on, under or about the Claremont Property, except as disclosed in
the Environmental Reports or as heretofore disclosed by Claremont. To HIC's
knowledge with respect to the HIC Property, no Hazardous Material (including,
without limitation, asbestos-containing materials and PCBs) have been
produced, disposed of or stored in, on, under or about the HIC Property,
except as disclosed in the Environmental Reports or as heretofore disclosed
by HIC.
(a) To Seller's knowledge, the list of pool and tennis club
members to be attached as SCHEDULE 7 shall be a complete and accurate list of
such members. Seller shall deliver SCHEDULE 7 to Buyer prior to expiration
of the Inspection period, and Seller and Buyer shall amend this Agreement to
attach SCHEDULE 7.
As used in this Section 6.1, the terms "to Seller's knowledge" or
"to Claremont's knowledge" or "to HIC's knowledge": (i) shall mean and apply
in the case of both Claremont and HIC to the actual knowledge only of Harold
J. Schnitzer, Henry Feldman and Thomas E. Eyer and not to any other Person,
(ii) shall mean the actual knowledge (and not any implied, constructive or
imputed knowledge) of such individuals, it being understood and acknowledged
that (a) such individuals may not be involved in the day-to-day operations of
the Property and in many instances were not involved in the negotiation or
execution of the leases, management contracts, service contracts, or other
documents in question and (b) such individuals are not charged with knowledge
of all of the acts and/or omissions of the predecessors in title to the
Property or with knowledge of all of the acts and/or omissions of Seller's,
Claremont's or HIC's agents or employees, as the case may be, and (iii) shall
not apply to or be construed to apply to information or material which may be
in the possession of Seller, Claremont or HIC, as the case may be, generally
or incidentally, but which is not actually known to the aforesaid individuals
who are directly engaged in the sale and purchase transaction described
herein.
Notwithstanding anything to the contrary contained herein, Seller
shall have no liability whatsoever to Buyer with respect to any matter of
which Buyer obtains knowledge before Closing which makes any of Seller's
representations or warranties untrue, including without limitation, matters
discovered by Buyer or matters disclosed to Buyer by Seller or by any
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other person (any such matter is referred to herein as an "Exception Matter")
(provided that, Seller has not breached an express covenant set forth in this
Agreement). Seller shall promptly disclose to Buyer any Exception Matter
which Seller obtains knowledge of during the term of this Agreement. If (i)
Buyer obtains knowledge of any Exception Matter between the end of the
Inspection Period and the Closing, (ii) such knowledge could not reasonably
have been obtained by Buyer during the Inspection Period, (iii) the Exception
Matter would materially and adversely affect either Buyer's operation of the
Property or the value of the Property, and (iv) within five (5) business days
after Seller receives written notice from Buyer of its objection to the
Exception Matter, Seller has not notified Buyer that it is willing to cure
such Exception Matter to the reasonable satisfaction of Buyer, then Buyer may
terminate this Agreement and receive a prompt refund of the Deposit upon
written notice to Seller delivered within three (3) business days after
expiration of the five (5) day period referred to in clause (iv) above. Upon
any such termination of this Agreement, neither party shall have any further
rights or obligations hereunder except for the indemnity in Section 11.1.
ARTICLE VII
BUYER'S REPRESENTATIONS
7.1 REPRESENTATIONS OF BUYER. Buyer hereby represents to Seller,
as of the date of this Agreement and the Closing Date, that:
(a) (i) Buyer is duly organized and legally existing under the
laws of the State of Delaware, and is qualified to do business in the State
of California, (ii) the execution and delivery by Buyer of, and Buyer's
performance under, this Agreement are within Buyer's powers and have been
duly authorized by all requisite corporate, partnership, or limited liability
company action, and (iii) the person executing this Agreement on behalf of
Buyer has the authority to do so.
(b) The execution and performance of this Agreement by Buyer will
not violate any provision of any agreement or judicial order to which Buyer
is a party or to which Buyer is subject.
(c) There is no litigation pending against Buyer that would
adversely affect or interfere with Buyer's ability to perform its obligations
under this Agreement.
7.2 BUYER'S INDEPENDENT INVESTIGATION.
(a) Buyer acknowledges and agrees that it has been given, or will
be given before the end of the Investigation Period, a full opportunity to
inspect and investigate each and every aspect of the Property and to
interview management, the Director of Sales and Marketing, existing tenants
under the Leases, service providers and their representatives, either
independently or through agents of Buyer's choosing (and Seller acknowledges
and agrees that subject to the provisions of Section 11.1 hereof, Seller
shall provide Buyer with reasonable access to the Property (subject to the
rights of tenants under the Leases) to facilitate such inspection and
investigation), including, without limitation:
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(i) All matters relating to title, together with all
governmental and other legal requirements such as taxes, assessments, zoning,
use permit requirements and building codes (including, without limitation,
the Americans with Disabilities Act (the "ADA") and Title 24 of California's
Administrative Code).
(ii) The physical and environmental condition and all other
aspects of the Property, including, without limitation, the interior, the
exterior, the square footage within the improvements on the Real Property,
the structure, the mechanical, electrical, HVAC and plumbing components, the
roofs, the paving, the utilities, and all other physical and functional
aspects of the Property. Such examination of the physical condition of the
Property shall include an examination for the presence or absence of
hazardous or toxic materials, substances or wastes (collectively, "Hazardous
Materials").
(iii) Any easements and/or access rights affecting the
Property.
(iv) The Leases and all matters in connection therewith,
including, without limitation, the ability of the tenants to pay the rent.
(v) The Equipment Leases, Service Contracts, insurance
policies and any other documents or agreements of significance affecting the
Property.
(vi) All other matters that Buyer deems to be of significance
affecting the Property.
(b) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS
SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS, WHERE IS, WITH ALL
FAULTS" BASIS AND THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS
OR IMPLIED, FROM SELLER, ITS AGENTS OR BROKERS AS TO ANY MATTERS CONCERNING
THE PROPERTY, INCLUDING WITHOUT LIMITATION: (i) the quality, nature, adequacy
and physical condition and aspects of the Property, including, but not
limited to, the structural elements, foundation, roof, appurtenances, access,
landscaping, parking facilities and the electrical, mechanical, HVAC,
plumbing, sewage, and utility systems, facilities and appliances, (ii) the
quality, nature, adequacy, and physical condition of soils, geology and any
groundwater, (iii) the existence, quality, nature, adequacy and physical
condition of utilities serving the Property, (iv) the development potential
of the Property, and the Property's use, habitability, merchantability, or
fitness, or the suitability, value or adequacy of the Property for any
particular purpose, (v) the zoning or other legal status of the Property or
any other public or private restrictions on use of the Property, (vi) the
compliance of the Property or its operation with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions and restrictions of
any governmental or quasi-governmental entity or of any other person or
entity (including, without limitation, the Americans with Disabilities Act
and Title 24 of California's Administrative Code), (vii) the presence of
Hazardous Materials on, under or about the Property or the adjoining or
neighboring property, (viii) the quality of any labor and materials used in
any improvements on the Real Property, (ix) the condition of title to the
Property, (x) the Leases, Equipment Leases, Service Contracts or any other
agreements affecting the Property and (xi) the operating performance and
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economics of the Property (Buyer hereby expressly acknowledging that Seller
has not made and is not making any representations or guarantees of any kind
concerning the future operating performance and profitability of the Hotel
and that Buyer shall make its own investigation and arrive at its own
determination concerning the future performance and profitability of the
Hotel).
(c) Buyer further acknowledges, understands, and agrees as follows:
(i) The Property may require certain seismic, structural and
deferred maintenance work, the cost and expense of which could be up to Two
Million Dollars ($2,000,000.00) in the aggregate;
(ii) Pursuant to terms and conditions of Oakland City Counsel
Resolution No. 64496, dated April 7, 1987, and an agreement with pool and
tennis club members dated as of 1972, there may be a restriction on the
number of members which may be accepted into the pool and tennis club;
(iii) Buyer is not entering into this Agreement with the
expectation of acquiring future expansion rights for the Property; and
(iv) The artwork listed in EXHIBITS F-2 AND F-3 are excluded
from the sale contemplated hereunder.
Buyer acknowledges that it considered the implications of the
matters described in subparagraphs (i)-(iv) above prior to execution of this
Agreement. Moreover, Buyer expressly waives its right to terminate this
Agreement during the Inspection Period or otherwise, based on any of the
matters described in subparagraphs (i)-(iv) above.
ARTICLE VIII
RISK OF LOSS AND INSURANCE PROCEEDS
8.1 DAMAGE BY CASUALTY. Seller shall promptly notify Buyer if,
prior to the Closing, the Property or any portion thereof is damaged or
destroyed by casualty. If the cost to repair such damage or destruction to
the Property (as reasonably estimated by Seller) would exceed Five Million
Dollars ($5,000,000.00), Buyer may, at its option, terminate this Agreement
as to the Property by delivering notice of such termination to Seller not
later than ten (10) business days after the date Buyer first receives
notification from Seller of such damage or destruction. If Buyer first
receives such notification less than ten (10) business days prior to the
Closing Date, Buyer may, by notice delivered to Seller, delay the Closing
Date to a date not later than ten (10) business days after the date Buyer
first receives such notification, and Buyer may elect to terminate this
Agreement, as provided above, during such ten (10) business day period. In
the event Buyer exercises its election to terminate this Agreement by reason
of this Section 8.1, this Agreement shall terminate, Buyer and Seller shall
each pay one-half (1/2) of the title and escrow charges, if any, the Deposit
shall be promptly returned to Buyer and neither party shall have any further
rights or obligations hereunder, except pursuant to the indemnity contained
in Section 11.1. In the event Buyer does not elect to terminate this
Agreement by reason of this Section 8.1, or in the event that the cost to
repair such damage or destruction does not exceed
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Five Million Dollars ($5,000,000.00), then the Closing shall occur on the
Closing Date, Seller shall assign to Buyer any right to insurance proceeds by
reason of such casualty, the Purchase Price shall be reduced by the amount of
any deductible or co-insurance applicable to such casualty under Seller's
insurance policies, and to the extent, such damage or destruction, in whole
or in part, is not covered by Seller's insurance policies, the Purchase Price
shall be reduced by the amount of such loss. Provided, however, if the cost
to repair such damage or destruction exceeds Ten Million Dollars
($10,000,000.00), whether or not such damage or destruction is covered by
Seller's insurance, Seller shall have the right to terminate this Agreement
by delivering notice of such termination to Buyer. In the event Seller
exercises its election to terminate this Agreement by reason of this Section
8.1, this Agreement shall terminate, Buyer and Seller shall each pay one-half
(1/2) of the title and escrow charges, if any, the Deposit shall be promptly
returned to Buyer and neither party shall have any further rights or
obligations hereunder, except pursuant to the indemnity contained in Section
11.1.
8.2 CONDEMNATION. Seller shall promptly notify Buyer if, prior to
the Closing, the Property or any interest therein, is taken pursuant to the
power of eminent domain, or Seller becomes aware of any proceeding with
respect thereto which is instituted. In such event, and provided that such
taking would, in Buyer's reasonable business judgment, have a material
adverse effect on the continued use and operation of the Property as a hotel,
Buyer may, at its option, terminate this Agreement as to the Property by
delivering notice of such termination to Seller not later than ten (10)
business days after the date Buyer first receives notification from Seller of
such taking, institution of proceeding or threat. If Buyer first receives
such notification less than ten (10) business days prior to the Closing Date,
Buyer may, by notice delivered to Seller, delay the Closing Date to a date
not later than ten (10) business days after the date Buyer first receives
such notification. In the event Buyer exercises its election to terminate
this Agreement by reason of this Section 8.2, this Agreement will terminate,
Buyer and Seller shall each pay one-half (1/2) of the title and escrow
charges, if any, the Deposit shall be promptly returned to Buyer and neither
party shall have any further rights or obligations hereunder, except pursuant
to the indemnity contained in Section 11.1. In the event Buyer does not
elect to terminate this Agreement by reason of this Section 8.2, the Closing
shall occur on the Closing Date, the Purchase Price shall not be reduced, and
Seller shall assign to Buyer all of its rights to compensation from the
condemning authority.
ARTICLE IX
CLOSING AND PRORATIONS
9.1 ESCROW INSTRUCTIONS. Upon execution of this Agreement, Seller
shall deposit an executed counterpart of this Agreement with the Title
Company, and this instrument shall serve as the instructions to the Title
Company as the escrow holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such reasonable
additional and supplementary escrow instructions as may be appropriate to
enable the Title Company to comply with the terms of this Agreement;
provided, however, that in the event of any conflict between the provisions
of this Agreement and any supplementary escrow instructions, the terms of
this Agreement shall control.
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9.2 CLOSING. The Closing hereunder shall be held, and delivery of
all items to be made at the Closing under the terms of this Agreement shall
be made, at the offices of Orrick, Herrington & Sutcliffe, Old Federal
Reserve Bank Building, 400 Sansome Street, San Francisco, California, on or
before April 21, 1998, or such earlier date as Buyer and Seller may mutually
agree upon in writing (the "Closing Date"); provided, however, the Closing
Date may be extended to April 27, 1998, pursuant to the terms and conditions
of Section 3.1(a) above. Except as otherwise expressly provided herein, the
Closing Date may not be extended without the prior written approval of both
Seller and Buyer.
9.3 DEPOSIT AND DELIVERY OF DOCUMENTS.
(a) At or before the Closing, Seller shall deposit into escrow
with the Title Company or deliver to Buyer the following items relating to
the Property or to this transaction:
(i) grant deeds from each of Claremont and HIC conveying all
of their right, title and interest in and to the Real Property and all
buildings, structures, fixtures, landscaping and other improvements
constructed on or affixed to such Real Property, in the form of attached
EXHIBIT H (the "Deed"), duly executed and acknowledged by Claremont or HIC,
as the case may be, and subject only to the Permitted Exceptions applicable
to the Claremont Property or the HIC Property, as the case may be;
(ii) bills of sale from each of Claremont and HIC with respect
to the Personal Property owned by each, in the form of attached EXHIBIT I
(the "Bills of Sale"), duly executed by Claremont or HIC, as the case may be;
(iii) two (2) counterparts of an assignment of the Service
Contracts, Equipment Leases, Leases, Intangibles and warranties and
guaranties, to the extent such items are (A) owned by Claremont, (B)
assignable (and/or any necessary consents thereto have been obtained), and
(C) in effect as of the Closing, in the form of EXHIBIT J (the "Assignment of
Contracts"), duly executed by Claremont;
(iv) an affidavit that Seller is not a "foreign person," in
compliance with Section 1445 of the Internal Revenue Code, in the form of
EXHIBIT K (the "FIRPTA Affidavit"), duly executed by Seller;
(v) an estoppel certificate substantially in the form
attached as EXHIBIT L for each of the tenants, occupants or concessionaires
under the Leases;
(vi) resolutions of the members of Claremont and the board of
directors of HIC, certified as true and correct by the appropriate officer of
each of said companies, authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein; and
(vii) two (2) counterparts of a preliminary schedule of
adjustments pursuant to Section 9.5 (the "Preliminary Schedule of
Adjustments"), duly executed by Seller;
(viii) any other agreements, documents and other items
expressly required to be delivered to Buyer by Seller pursuant to this
Agreement;
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(ix) such other instruments and documents as may be reasonably
be required by the Title Companies to eliminate exceptions for unfunded
mechanics' or materialmen's liens, for the occupancy of any party other than
tenants, licensees or other occupants under the Leases and transient lodging
guests. Seller shall deliver originals or certified copies of any
resolutions, trust indentures, agency agreements, powers of attorney,
consents and other documentation, and shall execute such affidavits and
indemnities, as may be required by the Title Companies, with respect to the
authority of Seller or of the person(s) signing on behalf of Seller;
(x) all master keys to all locks located at the Hotel;
(xi) a Certificate of Good Standing for each of HIC and
Claremont;
(xii) the original books and records of the Hotel
(excluding personnel files), to the extent in Seller's possession or
reasonable control, including, but not limited to, the Financial Information;
provided, however, Seller shall not deliver to Buyer the books and records
maintained in their corporate office in Portland, Oregon. Seller agrees to
retain such books and records for a period of six (6) years after the Closing
Date and shall make such books and records reasonably available to Buyer
during said six (6) year period; and Seller shall reasonably cooperate with
Buyer, at no cost or expense to Seller, to develop audited financial
statements; Buyer agrees to retain the books and records of the Hotel (which
were delivered to Buyer at Closing) for a period of six (6) years after the
Closing Date and make such books and records reasonably available to Seller
during such six (6) year period. The provisions of this Subparagraph (xii)
shall survive Closing;
(xiii) evidence of termination of the management contract,
if applicable, in form and substance reasonably satisfactory to Buyer; and
(xiv) a reaffirmation of Seller's representations and
warranties set forth in this Agreement subject to any Exception Matters and
updates to the exhibits and schedules attached hereto; provided, however, any
updates to Exhibits B, E, and/or G shall be an "Exception Matter(s)" pursuant
to the terms and conditions of Section 6.1 above.
(b) At or before the Closing, Buyer shall deposit into the Escrow
or deliver to Seller the following items relating to the Property or to this
transaction:
(i) funds necessary to close this transaction;
(ii) two (2) counterparts of the Assignment of Contracts, duly
executed by Buyer;
(iii) two (2) counterparts of the Preliminary Schedule of
Adjustments, duly executed by Buyer;
(iv) resolutions of the board of directors of Buyer, certified
as true and correct by the secretary or other appropriate officer of Buyer,
authorizing the execution and delivery of this Agreement and the consummation
of the transaction contemplated herein;
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(v) a reaffirmation of Buyer's representations and warranties
set forth in this Agreement;
(vi) a Certificate of Good Standing for Buyer; and
(vii) any other agreements, documents and other items
expressly required to be delivered to Seller by Buyer pursuant to this
Agreement.
(c) Buyer and Seller shall each deposit such other instruments as
are reasonably required by the Title Company or otherwise required to close
the escrow and consummate the purchase and sale of the Property in accordance
with the terms hereof.
9.4 PRORATIONS. At the Closing, the amount of the proceeds from
the Purchase Price shall be adjusted, upward or downward, as the case may be,
using generally accepted accounting principles and standard hotel accounting
procedures. The following adjustments shall be calculated as of 2:00 a.m. on
the Closing Date as follows, with Buyer being deemed to be the owner of the
Property as of 2:00 a.m. on the Closing Date and being entitled to receive
all income of the Property, and being obligated to pay all expenses of the
Property, on and after 2:00 a.m. on the Closing Date:
(a) The books of the Hotel shall be closed as of 2:00 a.m. on the
Closing Date, and all items relating to the balance sheet for the Property
and income and expense with respect to the ownership, operation and
management of the Property shall be allocated and/or prorated between Buyer
and Seller. Except as otherwise provided herein, all such allocations and/or
prorations shall be made in accordance with generally accepted accounting
principles, consistently applied, and standard hotel accounting procedures,
on the basis of a 365-day year; provided, however, if and to the extent that
there is a conflict between the generally accepted accounting principles and
standard hotel accounting procedures, the generally accepted accounting
principles, consistently applied, shall prevail. The items to be allocated
and/or prorated shall include, without limitation, the following:
(i) Real and personal property taxes on the basis of the
fiscal year for which assessed;
(ii) Water, sewer, electricity, steam, gas, fuel oil,
telephone, cable television and all other utility charges;
(iii) Payments payable under any Service Contracts or
Equipment Leases for services already performed as of the Closing Date; as
well as any payments under said agreements for services not yet rendered;
(iv) Rent and other payments owing under any Leases (provided
that the proration of any percentage rental subject to year-end adjustment
shall be calculated after the Closing Date, as provided in Section 9.4);
(v) Guest room revenue of the Hotel, whether in cash or in
accounts receivable, and vending machines, coin telephones or other
income-producing equipment (with Seller receiving an allocation for any of
same arising from occupancy for the night beginning on
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the day preceding the Closing Date and ending on the Closing Date), as well
as any commissions or other similar amounts owing with respect to room
rental;
(vi) Income from any other operations at the Hotel other than
guest room revenues (with Seller receiving an allocation with regard to any
thereof which remain open beyond 2:00 a.m. on the Closing Date through the
time such operations first close on the Closing Date);
(vii) All other revenue, including, without limitation,
guest telephone charges, and room service;
(viii) All other amounts payable for periods prior to the
Closing Date shall be paid by Seller and for periods after the Closing Date
shall be paid by Buyer, including, without limitation, trade account payable
assumed by Buyer by virtue of Buyer's assumption of the Service Contracts and
Equipment Leases, but excluding amounts payable for capital improvements to
the Property made prior to the Closing Date, which shall be paid by Seller,
including the capital improvements set forth on SCHEDULE 5 attached hereto
("Seller's Capital Projects"). Seller agrees to diligently proceed with
Seller's Capital Projects through the Closing Date. At Closing, Seller shall
either agree directly to pay all costs and expenses associated with the
completion of Seller's Capital Projects or Buyer shall receive a credit
against the Purchase Price equal to said costs and expenses;
(ix) Annual permits and/or inspection fees (calculated on the
basis of the period covered) and other actual operation and maintenance
expenses of the Property; and.
(i) The trade outs listed on SCHEDULE 6.
(b) In addition to the allocations and prorations provided for in
9.4(a) above, the following amounts shall be credited to Seller or to Buyer,
as provided below:
(i) Utility deposits made by Seller, which are credited or
transferred to the account of Buyer by the holder thereof, shall be credited
to Seller at the Closing;
(ii) Prepaid deposits for room charges for the period from and
after the Closing shall be credited to Buyer at the Closing, net of any
commissions or other expenses incurred in booking such rooms and banquets
which were paid by Seller prior to the Closing Date;
(iii) Security Deposits and any other deposits thereunder
actually held by Seller shall be credited or transferred to Buyer at Closing;
(iv) Attached hereto as SCHEDULE 4 is a list of (a) purchased
gift certificates that have been issued by Claremont, and (b) complimentary
gift certificates issued by Claremont for promotional purposes, which
SCHEDULE Seller hereby represents to Buyer is true and complete. Buyer shall
assume the obligation for honoring all such purchased gift certificates and
complimentary gift certificates that are still in effect and have not yet
been redeemed or cancelled as of the Closing Date. Prior to Closing, Buyer
and Seller shall mutually agree upon an amount to be credited to Buyer at
Closing representing those gift certificate obligations that
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Buyer is assuming pursuant to this subparagraph (iii), the amount of which
shall be based upon the historical rate of redemption of the Hotel during the
preceding three (3) calendar years and 1998, as applicable. Notwithstanding
the foregoing, Seller and Buyer acknowledge and agree that as of the date of
this Agreement, the parties have not finalized SCHEDULE 4. Seller and Buyer
agree to use good faith efforts to approve the form and content of SCHEDULE 4
and to amend this Agreement to attach SCHEDULE 4 prior to the expiration of
the Inspection Period.
(v) Cash on hand which remains at the Property as of 2:00
a.m. on the Closing Date shall be credited to Seller; and
(vi) All existing bank accounts of Seller shall be retained by
such Seller and closed out by such Seller in due course; and Buyer shall open
and fund its own bank accounts.
(c) At Closing, Seller shall provide Buyer with a list of all
accounts receivable as of the Closing Date. All such accounts receivable
shall be assigned to Buyer and Buyer shall forward to Seller or pay to Seller
on a weekly basis the amount of any payments received by Buyer on account of
such accounts receivable, said accounts receivable being subject to
reassignment to Seller as provided for in Section 9.5. Any payments received
by Buyer and not designated as payments for the accounts receivable payable
to Seller shall be applied first to any accounts receivable accruing after
the Closing Date, and then to accounts receivable accruing prior to the
Closing Date.
(d) Buyer and Seller shall each pay their own attorney's fees and
other fees and costs incurred in connection with the negotiation and
consummation of this Agreement and the transaction contemplated hereunder.
(e) Seller and Buyer shall each pay one-half (1/2) of: (i) the
premium for a standard CLTA Title Policy covering the Property; (ii) any real
property transfer taxes; (iii) any personal property sales taxes applicable
to the sale of the Personal Property; (iv) the escrow charges, if any, of the
Title Company; and (v) the fee for an update of the Survey. Buyer shall pay
the additional premium amount for the ALTA extended coverage increment to the
Title Policy and the entire cost of any endorsements to the Title Policy and
any coinsurance or reinsurance coverage required by the Buyer. Any other
customary closing costs shall be paid one-half (1/2) by each party.
(f) The provisions of this Section 9.4 shall survive the Closing.
9.5 PRORATION CALCULATION. The closing adjustments provided for
in Section 9.4 shall be initially prepared by Seller and reviewed by Buyer.
In the event of any dispute regarding such prorations, such dispute shall be
submitted to a nationally recognized accounting firm mutually acceptable to
Buyer and Seller and the decision of such firm shall be final and binding on
the parties. Each party shall bear one-half (1/2) of the costs and expenses
of such accountants. Buyer and Seller shall provide such accountants
reasonable access to the Property prior to and after the Closing Date for the
purpose of reviewing adjustments, if necessary. Buyer and Seller hereby
agree that if any of the aforesaid prorations cannot be calculated accurately
on the Closing Date, then the same shall be calculated within sixty (60) days
after the Closing Date
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and either party owing the other party a sum of money based on such
subsequent proration(s) shall promptly pay said sum to the other party.
Buyer and Seller further agree that if any accounts receivable arising prior
to the Closing Date that are assigned to Buyer pursuant to Section 9.4 are
not collected by Buyer within one hundred twenty (120) days from the Closing
Date despite Buyer's good faith efforts to collect such accounts receivable
during such one hundred twenty (120) day period, then Buyer shall have no
further obligation to collect or pay Seller for such uncollected accounts
receivable and such accounts receivable shall be reassigned to Seller,
together with all supporting documentation reasonably required by Seller to
pursue collection of such accounts; provided, that if following such
reassignment, Buyer shall receive payment with respect to any such reassigned
accounts receivable, Buyer shall promptly forward same to Seller.
9.6 SALE OF PERSONAL PROPERTY. On the Closing Date, Seller shall
cause the Personal Property to be transferred to Buyer free of any liens,
encumbrances or interests of third parties or of Seller (except for equipment
lessors of any Operating Equipment being leased by Seller and except for any
software licensing restrictions disclosed to Buyer during the Inspection
Period). The portion of the Purchase Price allocable to the Personal
Property shall be as mutually and reasonably determined by Seller and Buyer
on or prior to the expiration of the Inspection Period and set forth on
SCHEDULE 1. Seller shall pay on or prior to the Closing Date all sales and
use taxes arising from or attributable to the business and operations of the
Hotel as conducted by Seller prior to the Closing Date. Prior to the
expiration of the Inspection Period, Buyer and Seller agree to use good faith
efforts to negotiate an agreement (the "Sales Tax Agreement") which
memorializes and confirms the 50/50 split of any and all liability (including
the reasonable costs of any audit or other proceeding) relative to sales or
use taxes, if any, arising by reason of Seller's transfer of the Personal
Property. The Sales Tax Agreement shall address such matters as the joint
defense of any claim for such taxes and security for the performance of each
party's obligations thereunder. Notwithstanding the foregoing, the execution
and delivery of the Sales Tax Agreement shall not be a condition precedent to
either Buyer's or Seller's obligation to consummate the transaction
contemplated hereunder.
ARTICLE X
SELLER'S COVENANTS
10.1 MAINTENANCE OF THE PROPERTY. From the date hereof until the
Closing Date, Seller shall (a) maintain the Property in substantially the
same manner as prior to the date hereof pursuant to Seller's normal course of
business, subject to reasonable wear and tear and further subject to the
occurrence of any damage or destruction to the Property by casualty or other
causes or events beyond the control of Seller; provided, however, that
Seller's obligation under this Section 10.1 shall not include any obligation
to make capital expenditures or any other expenditures not incurred in
Seller's normal course of business; (b) continue to maintain its existing
insurance coverage on the Property (which insurance shall be terminated by
Seller at Closing); (c) not grant or permit any voluntary liens or
encumbrances affecting the Property; (d) not enter into any lease, amendment
of lease or other contract pertaining to the Property, except as provided in
Section 10.2; (e) maintain adequate, usual and customary levels/inventories
of Operating Equipment and Operating Supplies, FF&E, Liquor Inventory and
other Personal Property; (f) shall not remove any FF&E from the Property
(other than in the ordinary course of business in which case adequate
replacements shall have been made.); and (g) hire, discharge and set
compensation levels for Hotel employees in the ordinary course of
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business and in accordance with Seller's current and customary practices
and policies.
10.2 BUYER'S APPROVAL OF NEW CONTRACTS AFFECTING THE PROPERTY.
Seller shall not, between the date of this Agreement and the Closing Date,
enter into any lease, amendment of lease, contract or agreement pertaining in
any material way to the Property, or modify in any material way any Assumed
Contracts pertaining in any material way to the Property, or waive any
material rights of Seller thereunder, without in each case obtaining Buyer's
prior written consent thereto, which consent shall not be unreasonably
withheld or delayed (excluding, however, any booking or room reservation
agreements or contracts which are on commercially reasonable terms with
unaffiliated third parties, and any other contracts or agreements with
unaffiliated third parties which are on commercially reasonable terms and
which will not survive the Closing or which may be canceled without penalty
on not more than thirty (30) days' notice). If Buyer fails to give notice of
its approval or disapproval of any such proposed action within five (5)
business days after Seller notifies Buyer of such decision to take such
action, Buyer shall be deemed to have given its approval thereto. For
purposes of this Section 10.2, notice shall be given by Seller to Buyer by
facsimile sent to Gary Beasley at (760) 564-4880, with a facsimile copy sent
to Nola S. Dyal, Esq. and J. Whitney Markowitz, Esq. at (760) 564-4880.
ARTICLE XI
SELLER'S AND BUYER'S COVENANTS
11.1 ACCESS. Between the execution of this Agreement and the
Closing Date, Seller shall give Buyer and its employees, representatives,
agents, third party consultants and advisors full access to the Property and
to all of Seller's books, contracts, files, commitments, permits, licenses
and any other records Buyer deems appropriate with respect thereto and to all
management and the Director of Sales and Marketing of the Property (and other
employees of the Property with Seller's consent; provided, however, after the
expiration of the Inspection Period, Seller's consent shall not be
unreasonably withheld), subject to reasonable security precautions and
reasonable limitations imposed by Seller as necessary to maintain
confidentiality with respect to such matters as Seller's files and records
relating to the marketing of the Property, internal economic analyses, and
matters covered by the attorney-client privilege. Upon execution of this
Agreement, Buyer shall have full authority to contact any Authorities that
may have information and/or documentation concerning the Property; provided,
however, any and all communications with employees and/or officials of the
City of Oakland and County of Alameda and with union representatives shall be
coordinated by, and at Seller's discretion, conducted with Henry Feldman who
shall make himself reasonably available to Buyer for such purposes. Seller
will cause its accountants to furnish such additional financial and operating
data and other information, within the possession and control of such
accountants, as Buyer may from time to time reasonably request.
In connection with any entry by Buyer, or its agents, employees or
contractors onto the Property, Buyer shall give Seller reasonable advance
notice of such entry and shall conduct such entry and any inspections in
connection therewith so as to minimize, to the extent reasonably possible,
interference with Seller's business, the business of Seller's tenants, or
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guests of the Hotel, and otherwise in a manner reasonably acceptable to
Seller. Without limiting the foregoing, prior to any entry to perform any
on-site inspections or testing, Buyer shall give Seller written notice
thereof, including the identity of the company or persons who will perform
such testing and the proposed scope of the testing. Seller shall approve or
disapprove (which approval may be withheld in Seller's reasonable discretion)
the proposed testing and the party performing the same within two (2)
business days after receipt of such notice. If Buyer or its agents, employees
or contractors take any sample from the Property in connection with any such
approved testing, Buyer shall provide to Seller a portion of such sample
being tested to allow Seller, if it so chooses, to perform its own testing.
Seller or its representative may be present to observe any testing or other
inspection performed on the Property. Buyer shall promptly deliver to Seller
copies of any reports relating to any testing or other inspections of the
Property performed by Buyer or its agents, employees or contractors for
Seller's information only; Seller acknowledges that such reports are
delivered without representations by Buyer. Buyer shall maintain, and shall
ensure that its contractors maintain, public liability and property damage
insurance in amounts and in form and substance reasonably adequate to insure
against all liability of Buyer and its agents, employees or contractors,
arising out of any entry or inspections of the Property pursuant to the
provisions hereof, and Buyer shall provide Seller with evidence of such
insurance coverage upon request by Seller. Buyer shall indemnify and hold
Seller harmless from and against any costs, damages, liabilities, losses,
expenses, liens or claims (including, without limitation, reasonable
attorney's fees) relating to personal injury or property damage arising out
of or relating to any entry on the Property by Buyer, its agents, employees
or contractors in the course of performing the inspections, testings or
inquiries provided for in this Agreement. The indemnification provisions of
this Section 11.1 shall survive the Closing or any termination of this
Agreement and shall be in addition to any liability under Section 2.2(b)(ii).
11.2 CONFIDENTIALITY; RETURN OF INFORMATION TO SELLER. Between the
execution of this Agreement and the Closing, neither party shall directly or
indirectly use or disclose any confidential information concerning the
Property, the other party, the other party's assets or the transactions
contemplated by this Agreement to any Person except that such matters may be
disclosed (a) to such party's directors, officers, partners, and employees;
(b) to such party's legal counsel, accountants, engineers, architects,
financial advisors, lenders and similar professionals and consultants to the
extent such party deems it reasonably necessary or appropriate in connection
with the evaluation of the transaction contemplated hereby; and (c) by Seller
to third parties having an ownership interest in or relationship with the
Hotel (such as existing mortgagees and equipment lessors) to whom disclosure
is necessary or desirable in order to facilitate the consummation of the
transactions contemplated hereby. For the purpose of this Section 11.2, the
term "confidential information" shall mean information which is or becomes
known to a party or its respective affiliates or to their employees, former
employees, consultants or others in a confidential relationship with such
party, including, without limitation, pursuant to the terms of this
Agreement, and which relates to the Property, the transactions contemplated
by this Agreement or the business of either party; provided, however, that
confidential information shall not include (i) information which is or
becomes generally available to the public other than through a violation of
law or obligation hereunder, (ii) information which, in the opinion of
counsel to either party, such party is required by law, court order,
governmental order or decree to disclose, except that the other party may at
its own expense appeal such court order, (iii) information which was
developed by such party on its own, independent from the proprietary
information made available to such party hereunder, and (iv) information
which was
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subsequently made available to such party by a third party who was not
violating the law or any obligation hereunder in making such disclosure. In
the event the transaction contemplated by this Agreement fails to close for
any reason, Buyer shall promptly return to Seller all documents, instruments,
copies of materials and other written information furnished to Buyer pursuant
to the terms of this Agreement.
11.3 FURTHER ASSURANCES. Subject to the terms and conditions
hereof, each party agrees to use its best efforts to do, or cause to be done,
all things, not inconsistent with the terms of this Agreement, necessary,
proper, or advisable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement as expeditiously as practicable,
including, without limitation, the performance of such further acts or the
execution and delivery of such additional instruments or documents, not
inconsistent with the terms of this Agreement, as any party may reasonably
request in order to carry out the purposes of this Agreement and the
transactions contemplated hereby, including, without limitation, in
connection with the transfer to Buyer of the Service Contracts, the Leases,
and the Equipment Leases.
11.4 EMPLOYEES. Buyer agrees to indemnify and hold Seller harmless
from and against any and all claims of the employees of Seller, employee
representatives, and applicable units of local government based on failure to
comply with the Worker Adjustment and Retraining Notification Act 29 U.S.C.
2101 ET SEQ. (the "WARN Act"), to the extent applicable. Unless otherwise
agreed between Seller and Buyer, Seller shall be responsible for any
liability for payment of all employees' wages, accrued vacation pay, sick
leave, bonuses, pension benefits and other benefits, including, without
limitation, any COBRA rights, earned by and due to or accrued to employees at
the Property as of the day prior to the Closing Date, together with FICA,
unemployment and other taxes and benefits due from any employer of such
employees, and including COBRA benefits that are due to employees of Seller
that Buyer does not hire upon the Closing Date.
(a) FUTURE EMPLOYMENT OF EMPLOYEES. At Closing, the employment by
Seller of all employees whose employment is at or for the Hotel, shall
terminate and such employees shall cease to participate in any employee
benefit plans maintained by or for the benefit of Seller. Seller shall retain
responsibility for the payment of any employee benefits or entitlements,
including severance pay, accrued vacation, sick or holiday pay, to all
terminated employees pursuant to any employee benefit plan, fund, program,
contract, policy or arrangement of Seller or applicable law or regulation as
a result of the consummation of the transactions contemplated hereby.
Subject to the WARN Act obligations described in the first paragraph of
Section 11.4, nothing in this Agreement, express or implied, shall confer
upon any employee of Seller, or any representative of any such employee, any
rights or remedies, including any right to employment, continued employment
for any period, or seniority rights, of any nature whatsoever.
(b) HEALTH CARE CONTINUATION REQUIREMENTS. The parties
acknowledge that the transactions contemplated hereby will result in
obligations on the part of Seller and one or more of Seller's employee
benefit plans that is a welfare benefit plan (within the meaning of Section
3(1) of ERISA) to comply with the health care continuation requirements of
Part 6 of Title 1 of ERISA and Code Section 4980B, as applicable. Seller and
each such employee benefit plan that is such a welfare benefits plan shall
comply with the applicable requirements of such laws. Seller shall take all
actions to insure continuation of each such employee benefit plan that
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is such a welfare benefit plan for a minimum period of one hundred twenty
(120) days from and after the Closing Date. The parties expressly agree that
Buyer and Buyer's benefit plans, if any, shall have no responsibility for
compliance with such health care continuation requirements (i) for qualified
beneficiaries who previously elected to receive continued coverage under
Seller's ERISA benefit plans or who between the date of this Agreement and
the Closing Date elect to receive continued coverage, or (ii) with respect to
those employees or former employees of Seller who may become eligible to
receive such continued coverage as a result of the transactions provided for
in this Agreement.
(c) EMPLOYEE BENEFIT PLANS. Except as specifically set forth in
this Agreement: (i) Buyer shall not be obligated to assume, continue or
maintain any of Seller's employee benefit plans; (ii) no assets or
liabilities of such employee benefit plans shall be transferred to, or
assumed by, the Buyer or the Buyer's benefit plans; and (iii) Seller shall be
responsible solely for funding and/or payment of any benefits under any such
employee benefit plans, including any termination benefits and other employee
entitlements accrued under such plans by or attributable to employees of
Seller prior to the Closing Date.
(d) INDEMNIFICATION OF BUYER. Seller agrees to pay and be liable
to Buyer, its affiliates and their respective directors, officers and
employees (herein individually a "Buyer Indemnified Party" and collectively,
"Buyer Indemnified Parties") and shall assume, indemnify, defend and hold
harmless the Buyer Indemnified Parties from and against and in respect of any
and all losses, damages, liabilities, taxes, sanctions that arise (A) under
Section 4980B of the Code and Part 6 of Title I of ERISA, interest and
penalties, costs and expenses (including, without limitation, disbursements
and reasonable legal fees incurred in connection therewith and in seeking
indemnification therefor, and any amounts or expenses required to be paid or
incurred in connection with any action, suit, proceedings, claim, appeal,
demand, assessment or judgment) imposed upon, incurred by, or assessed
against any Buyer Indemnified Party arising by reason of or relating to any
failure to comply with the health care continuation coverage requirements of
Section 4980B of the Code and Part 6 of Title I or ERISA which failure
occurred or occurs (i) on or prior to the Closing Date with respect to any
current or former employee of Seller or any qualified beneficiary of such
employee (as defined in Section 4980B(g)(1) of the Code), or (ii) after the
Closing Date with respect to any current or former employee of Seller who
does not at any time become entitled to coverage under any group health plan,
within the meaning of Section 5000(b)(1) of the Code, of Buyer, or with
respect to any dependent of such employee and for any failure to comply with
the notice or other requirements of the Act, and/or (B) in connection with
any employee complaints and/or matters pending before any applicable
administrative agencies, including without limitation, the National Labor
Relations Board, EEOC, Department of Labor, Department of Fair Employment
Housing, and/or any applicable collective bargaining dispute resolution
forums prior to the Closing Date or relating to incidents arising prior to
the Closing Date.
(e) INDEMNIFICATION OF SELLER. Buyer agrees to pay and be liable
to Seller, its affiliates and their respective officers and employees (herein
individually a "Seller Indemnified Party" and collectively, "Seller
Indemnified Parties") and shall assume, indemnify, defend and hold harmless
Seller Indemnified Parties from and against and in respect of any and all
losses, damages, liabilities, taxes, sanctions that arise (A) under Section
4980B of the Code and Part 6 of Title I of ERISA, interest and penalties,
costs and expenses (including, without limitation,
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disbursements and reasonable legal fees incurred in connection therewith and
in seeking indemnification therefor, and any amounts or expenses required to
be paid or incurred in connection with any actions, suit, proceedings, claim,
appeal, demand, assessment or judgment) imposed upon, incurred by, or
assessed against any Seller Indemnified Party arising by reason of or
relating to any failure to comply with the health care continuation coverage
requirements of Section 4980B of the Code and Part 6 of Title I of ERISA
which failure occurs with respect to any current or former employee of Seller
actually hired as an employee of Buyer or any qualified beneficiary of such
employee, as defined in Section 4980B(g)(1) of the Code, who after the
Closing Date becomes entitled to coverage under any group health plan, within
the meaning of Section 5000(b)(1) of the Code, of Buyer, and/or (B) in
connection with any employee complaints and/or matters before any applicable
administrative agencies, including without limitation, the National Labor
Relations Board, EEOC, Department of Labor, Department of Fair Employment
Housing, and/or any applicable collective bargaining dispute resolution
forums on and after the Closing Date or relating to incidents arising on and
after the Closing Date.
For purposes of this Agreement, references to the Code shall mean
the Internal Revenue Code of 1986 and references to the Code and ERISA shall
include references to any provision of such statutes as they may be amended
from time to time.
11.5 TRANSFER OF LIQUOR ASSETS.
(a) APPLICATION FOR TRANSFER. Buyer shall file with the
California Department of Alcoholic Beverage Control (the "Department") an
application for the transfer of the Liquor Licenses to Buyer or Buyer's
designee and shall prosecute such application with due diligence, including
supplying to the Department promptly all information required or reasonably
requested by the Department. Buyer shall pay all fees required by the
Department in connection with such application for the transfer of the Liquor
Licenses; provided, however, that Seller shall be liable for the payment of
any and all amounts required to be paid to the California State Board of
Equalization and/or the California Franchise Tax Board as a precondition to
the transfer of such Liquor Licenses to Buyer.
(b) APPLICATION FOR QUALIFICATION OF OPERATOR. Buyer shall file
with the Department an application for Qualification of Buyer or the operator
of the Hotel designated by Buyer authorizing Buyer or such operator to serve
alcoholic beverages at the Hotel and shall prosecute such application with
due diligence, including supplying to the Department promptly all information
required or reasonably requested by the Department. Buyer shall pay all fees
required by the Department in connection with such application for the
qualification of Buyer or such operator.
(c) LIQUOR ESCROW. Prior to applying to the Department pursuant
to Section 11.5(a), above, Buyer and HIC shall open an escrow (the "Liquor
Escrow") with the Bank of San Francisco, as escrow holder, in accordance with
the provisions of the Alcoholic Beverage Control Act and Title 4, California
Code of Regulations, to provide for the transfer of the Liquor Assets through
the Liquor Escrow, following approval by the Department of Buyer's
application for the transfer of the Liquor Licenses.
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(d) SELLER'S COOPERATION. HIC and Claremont agree, both in
connection with the application for the transfer of the Liquor Licenses and
in connection with any application for a temporary permit as described in
Section 11.5(e) below, to reasonably cooperate with Buyer in supplying
information required or reasonably requested by the Department and executing
any necessary documents for filing with the Department or as otherwise
required to be executed or recorded by the Department.
(e) ALLOCATION OF PURCHASE PRICE TO LIQUOR ASSETS; CLOSING;
TEMPORARY PERMIT. Buyer and HIC currently agree to allocate One Hundred
Fifty Thousand Dollars ($150,000) of the Purchase Price to the Liquor Assets,
which amount shall be paid into the Liquor Escrow from the Purchase Price due
Seller at Closing; provided, however, the foregoing allocation may be
adjusted by Seller and Buyer during the Inspection Period in connection with
the allocation of Purchase Price to be specified on SCHEDULE 1. On or prior
to the Closing Date, HIC shall deposit into the Liquor Escrow a liquor escrow
bill of sale conveying the Liquor Assets to Buyer, which bill of sale shall
be delivered to Buyer upon close of the Liquor Escrow. Buyer shall act
diligently to obtain, prior to the Closing Date, the Department's approval of
the application for transfer of the Liquor Licenses and the application for
qualification of Buyer or the Buyer's operator, or, if such approvals have
not been obtained, a temporary liquor license permit from the Department;
provided, however, that such approvals or temporary permit are not conditions
precedent to the Closing and, if Buyer fails to obtain such approvals or such
temporary permit, Buyer shall waive the transfer of Liquor Assets as a
closing condition and shall proceed to Closing.
In the event Buyer obtains the temporary liquor license permit on
or before Closing, Buyer shall have the right, on and after the Closing Date,
to use the Liquor Assets pending the closing of the Liquor Escrow, and at the
Closing the portion of the Purchase Price allocated to the Liquor Assets
shall be transferred by the Title Company to the Liquor Escrow. Buyer and
HIC shall instruct the escrow holder under the Liquor Escrow to make payment
to creditors for any outstanding amounts owed by HIC for the Liquor Assets
and to invest all funds held in the Liquor Escrow as HIC shall direct and to
pay all interest earned thereon, together with any portion thereof not
required to satisfy the claims of creditors of the Hotel with respect to the
Liquor Assets whose claims accrued prior to the Closing Date, to HIC upon
close of the Liquor Escrow.
11.6 ARTWORK SUBJECT TO SPECIAL CONDITIONS. Buyer and Seller
acknowledge and agree that the Personal Property to be acquired by Buyer in
connection herewith includes, without limitation, the artwork located or
displayed on the Property, except as listed on EXHIBITS F-2 AND F-3 (the
"Acquired Artwork"). Notwithstanding the foregoing, Buyer hereby agrees that
in the event that any item of the Acquired Artwork listed on EXHIBIT F-1
attached hereto is to be sold by Buyer, HIC shall have a right of first
refusal to acquire said Acquired Artwork at the then appraised market value
or shall have the right to require Buyer to donate said Acquired Artwork to
the Portland Art Museum.
Buyer and Seller acknowledge and agree that the Personal Property
to be acquired by Buyer in connection herewith shall not include the artwork
listed on EXHIBITS F-2 AND F-3 ("Excluded Artwork"), which Excluded Artwork
is owned by Harold J. Schnitzer and Arlene Schnitzer (the "Schnitzers").
Notwithstanding the foregoing, Seller on behalf of the Schnitzers
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hereby agrees that (A) the Excluded Artwork listed on EXHIBIT F-2 attached
hereto ("Short Term Borrowed Artwork") may remain on display at the Hotel for
a period of up to one hundred eighty (180) days after the Closing Date,
subject to the following terms and conditions: (i) on or before the Closing
Date, Buyer shall provide written notice to Seller of its election to retain
the Short Term Borrowed Artwork pursuant to this Section 11.6; (ii) during
the Loan Period (as defined below), Buyer shall keep the Short Term Borrowed
Artwork secured and in good condition; (iii) during the Loan Period, Buyer
shall maintain personal property insurance to insure the Short Term Borrowed
Artwork in such amounts and in form and substance reasonably approved by
Seller, and said insurance shall name Seller as an additional insured; (iv)
Buyer shall provide Seller with evidence of such insurance on or before the
Closing Date; and (v) Buyer at its sole cost and expense shall return the
Short Term Borrowed Artwork to the Schnitzers upon the earlier of (a) one
hundred eighty (180) days after the Closing Date, or (b) such time as Buyer
elects not to display the Short Term Borrowed Artwork at the Hotel (the "Loan
Period") and (B) the Excluded Artwork listed on EXHIBIT F-3 ("Long Term
Borrowed Artwork") may remain at the Hotel indefinitely, subject to the
following conditions: (i) on or before the Closing Date, Buyer shall provide
written notice to Seller of its election to retain the Long Term Borrowed
Artwork pursuant to this Section 11.6; (ii) Buyer shall keep the Long Term
Borrowed Artwork secured and in good condition; (iii) Buyer shall maintain
personal property insurance to insure the Long Term Borrowed Artwork in such
amounts and in form and substance reasonably approved by Seller, and said
insurance shall name Seller as an additional insured; (iv) Buyer shall
provide Seller with evidence of such insurance on or before the Closing Date;
and (v) Buyer at its sole cost and expense shall return the Long Term
Borrowed Artwork to the Schnitzers at such time as Buyer elects not to
display the Long Term Borrowed Artwork at the Hotel (other than for routine
maintenance or construction purposes).
11.7 INDEMNIFICATION. Each party (each, an "Indemnifying Party")
hereby agrees to indemnify and defend the other party and its respective
officers, partners, directors, shareholders, affiliates and agents (the
"Indemnified Parties") and hold the Indemnified Parties harmless from and
against any and all losses, damages, liabilities, claims, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) paid
or incurred by the Indemnified Parties due to misrepresentations or breach of
warranty or breach of covenant made by the Indemnifying Party in this
Agreement or in any document, certificate, or exhibit given or delivered to
the other party hereto pursuant to or in connection with this Agreement, and
the indemnification provisions of this Section 11.7 shall survive the
Closing.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. Any notices required or permitted to be given
hereunder shall be given in writing and shall be delivered (a) in person, (b)
by certified mail, postage prepaid, return receipt requested, (c) by
Facsimile, or (d) by a commercial overnight courier that guarantees next day
delivery and provides a receipt, and such notices shall be addressed as
follows:
TO BUYER: KSL RECREATION GROUP, INC.
56-140 PGA Boulevard
La Quinta, California 92253
30
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ATTN: JOHN SAER, GARY BEASLEY
Facsimile No: (760) 564-4880
cc: LEGAL DEPARTMENT
Facsimile No: (760) 564-4880
WITH A COPY TO: ALLEN, MATKINS, LECK, GAMBLE
& MALLORY, LLP
515 South Figueroa Street, 8th Floor
Los Angeles, California 90071
ATTN: MICHAEL F. SFREGOLA
Facsimile No: (213) 620-8816
TO CLAREMONT: CLAREMONT HOTEL L.L.C.
c/o 1121 S.W. Salmon Street
Portland, OR 97205
ATTN: HAROLD J. SCHNITZER
Facsimile No: (503) 274-2093
TO HIC: HARSCH INVESTMENT CORP.
1121 S.W. Salmon Street
Portland, OR 97205
ATTN: HAROLD J. SCHNITZER
Facsimile No: (503) 274-2093
WITH A COPY (IN THE CASE
OF ANY NOTICE GIVEN TO
BOTH CLAREMONT AND HIC
OR TO EITHER OF THEM) TO: Orrick, Herrington & Sutcliffe, LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111-3143
ATTN: NOEL W. NELLIS
Facsimile No: (415) 773-5759
or to such other address as either of the parties may from time to time
specify in writing to the other parties. Any notice shall be effective only
upon delivery, which for any notice given by facsimile shall mean notice
which has been received by the party to whom it is sent as evidenced by
confirmed answerback. The inability to deliver because of a changed address
of which no notice was given, or rejection or other refusal to accept any
notice, shall be deemed to be the receipt of the notice as of the date such
inability to deliver or rejection or refusal to accept. Any notice to be
given by any party hereto may be given by the counsel for such party.
12.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
12.3 INTERPRETATION OF AGREEMENT. The article, section and other
headings of this Agreement are for convenience of reference only and shall
not be construed to affect the
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meaning of any provision contained herein. All Exhibits and Schedules
described herein and attached hereto are fully incorporated into this
Agreement for all purposes by this reference. Where the context so requires,
the use of the singular shall include the plural and vice versa and the use
of the masculine shall include the feminine and the neuter. The parties
acknowledge that, with respect to the transactions contemplated by this
Agreement, (a) each party and its attorneys have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or
Exhibits thereto and (b) each party has relied solely on the advice of its
own accounting, tax, legal and other advisors. All dates and times referred
to in this Agreement shall be on Pacific Standard Time or Pacific Daylight
Savings Time (as applicable). In the event that the specified date by which
any notice is to be delivered hereunder falls on a Saturday, Sunday or a
legal holiday, then such date shall be deemed to be extended to the next
following business day.
12.4 ENTIRE AGREEMENT. This Agreement, together with the Exhibits
and Schedules hereto, contains all representations, warranties and covenants
made by Buyer and Seller and constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof. Any prior
correspondence, memoranda or agreements are replaced in total by this
Agreement together with the Exhibits and Schedules hereto.
12.5 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any Person, place, or circumstance, except for any
item which constitutes a material element of the consideration between the
parties, shall be held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and such provisions
as applied to other Persons, places, and circumstances shall remain in full
force and effect.
12.6 COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
12.7 SUCCESSORS AND ASSIGNS. Buyer shall not have the right to
assign all or any part of its interest in this Agreement without obtaining
the prior written consent of Seller, which consent may be withheld in
Seller's sole and absolute discretion, except Buyer may assign this Agreement
or any portion thereof to any of its subsidiaries and affiliates upon notice
thereof to Seller (a "Permitted Assignment"). In no event shall Buyer be
released from any of its obligations or liabilities hereunder whether or not
Seller approves of any assignment of this Agreement or there is a Permitted
Assignment. Buyer hereby agrees that any assignment by Buyer in
contravention of this provision shall be void and shall not relieve Buyer of
its obligations and liabilities hereunder. Subject to the foregoing, this
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors, heirs, administrators and assigns.
12.8 FINDERS AND BROKERS. Except as expressly provided to the
contrary in this Agreement, each party hereto shall pay its own expenses
(including, without limitation, attorneys' fees) incurred in connection with
this Agreement and the transactions contemplated hereby. The parties
represent and warrant to each other that no broker or finder was involved in
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arranging or bringing about this transaction and there are no claims or
rights for brokerage commissions or finders' fees in connection with the
transactions contemplated by this Agreement, except for Eastdil Realty
Company, Inc., whose commission shall be paid by Seller pursuant to a
separate agreement between Seller and Eastdil Realty Company, Inc. In the
event that any broker or finder brings a claim for a commission or finder's
fee based upon any contact, dealings or communication with Buyer or Seller,
the party through whom the broker or finder makes his claim shall defend the
other party from such claim, and shall indemnify the other party and hold the
other party harmless from any and all damages, liabilities, losses, costs and
expenses (including reasonable attorneys' fees and disbursements) paid or
incurred by the other party in defending against the claim. The provisions
of this Section 12.8 shall survive the Closing or any termination of this
Agreement and shall be in addition to any liability under Section 2.2(b)(ii).
12.9 ATTORNEYS' FEES. In the event either party hereto fails to
perform any of its obligations under this Agreement or in the event any
dispute arises between the parties hereto concerning the meaning or
interpretation of any provision of this Agreement, the defaulting party or
the party not prevailing in such dispute, as the case may be, shall pay any
and all costs and expenses incurred by the other party on account of such
default and/or in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys' fees and
disbursements.
12.10 WAIVER OF COMPLIANCE. Any failure of Seller, on the one
hand, or Buyer, on the other, to comply with any provision of this Agreement
may be expressly waived in writing by Buyer or Seller, respectively, but such
waiver or failure to insist upon strict compliance with such provision shall
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. No failure to exercise and no delay in exercising any right,
remedy, or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, or power hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, or power provided herein or by law or in equity. The waiver by any
party of the time for performance of any act or condition hereunder does not
constitute a waiver of the act or condition itself.
12.11 SURVIVAL OF REPRESENTATIONS. The representations of
Seller and Buyer contained in Sections 6.1 and 7.1 shall survive for a period
of twelve (12) months after the Closing. Any claim that either Buyer or
Seller may have at any time against the other party for a breach of any such
representation, whether known or unknown, which is not asserted by written
notice to such other party within such twelve (12) month period shall not be
valid or effective, and such other party shall have no liability with respect
thereto.
12.12 AMENDMENTS. This Agreement may not be amended or
modified except by a written instrument signed by both Buyer and Seller.
12.13 TIME OF THE ESSENCE. Time is of the essence in the
performance of Buyer's obligations under this Agreement.
12.14 SECTION 1031 EXCHANGE. It is presently contemplated that
HIC may desire to effectuate a tax-deferred exchange (also known as a "1031"
exchange) (an "Exchange") in
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connection with the sale of the portion of the Real Property that is
presently owned by HIC. Buyer hereby agrees to cooperate with HIC in
connection with such Exchange (including, without limitation, by executing
documents consenting to the assignment of this Agreement to an exchange
facilitator), provided that:
(i) All documents executed by Buyer in connection with the
Exchange shall be subject to the prior reasonable approval of Buyer and shall
recognize that that Buyer is acting solely as an accommodating party to such
Exchange, shall have no liability with respect thereto, and is making no
representation or warranty that the transaction qualifies as a tax-free
exchange under Section 1031 of the Internal Revenue Code or any applicable
state or local laws, and Buyer shall have no liability whatsoever if any such
transactions fails to so qualify.
(ii) Such Exchange shall not result in Buyer incurring any
additional costs, liabilities or delay.
(iii) In no event shall Buyer be obligated to acquire any
property or otherwise be obligated to take title, or appear in the records of
title, to any property in connection with such Exchange.
(iv) In no event shall HIC's consummation of such Exchange
constitute a condition precedent to Seller's obligations under this
Agreement, and HIC's failure or inability to consummate such Exchange for any
reason or for no reason at all shall not be deemed to excuse or release that
party from the Seller's obligations under this Agreement.
12.15 SHADOW MANAGEMENT. Upon the expiration of the Inspection
Period and provided that Buyer has not elected to terminate this Agreement,
as provided herein, Seller shall permit Buyer to establish and maintain a
shadow management operation with respect to the Hotel. Personnel from
Buyer's shadow management operation shall have reasonable access during
normal business hours to all books, records and other information in the
possession or control of records and other information in the possession or
control of Seller or its agents concerning the Hotel and shall have the right
(at Buyer's expense) to establish duplicate books and records (whether in
tangible or electronic form) in order to effect a smooth transition in the
ownership and management of the Hotel; provided, however, that Buyer and its
shadow management operation and employees shall not unreasonably interfere
with the normal management and operation of the Hotel, shall hold all
information acquired from such books and records confidential in accordance
with the provisions of this Agreement, shall repair any damage to the
physical condition of the Hotel caused by Buyer or its agents in any such
shadow management operation, and shall not be deemed to have assumed
management responsibilities prior to Closing by virtue of such shadow
management.
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12.16 BULK SALES COMPLIANCE. Seller shall and hereby agrees to
indemnify, hold harmless and defend Buyer for any loss, damage, liability,
claim or expense (including, without limitations, reasonable attorneys' fees
and expenses) on account of claims of Seller's creditors arising from
Seller's failure to comply with any applicable bulk sales laws, which
indemnity shall survive the Closing Date.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER: CLAREMONT HOTEL L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/
--------------------------------------
THOMAS E. EYER
Its: Senior Vice President
HARSCH INVESTMENT CORP.,
AN OREGON CORPORATION
By: /s/
--------------------------------------
GREGORY H. BAUM
Its: Vice President and
General Counsel
BUYER: KSL RECREATION GROUP, INC.,
A DELAWARE CORPORATION
By: /s/
--------------------------------------
JOHN K. SAER, JR.
Its: Vice President and
Chief Financial Officer
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<PAGE>
LIST OF EXHIBITS AND SCHEDULES
A - Description of Real Property
A-1 - Description of Claremont Property
A-2 - Description of HIC Property
B - Equipment Leases
C - FF&E
C-1 - Chinaware, Glassware, Silverware and Linens
D - Intangibles
E - Leases
F - Operating Equipment
F-1 - Acquired Artwork Subject to Right of First Refusal
F-2 - Short Term Borrowed Artwork
F-3 - Long Term Borrowed Artwork
F-4 - Excluded Personal Property
G - Service Contracts
H - Deed
I - Bill of Sale -- Personal Property
J - Assignment of Service Contracts, Equipment Leases, Leases,
Intangibles and Warranties and Guaranties
K - FIRPTA Affidavit
L - Form of Estoppel Certificate
Schedule 1 - Allocation of Purchase Price
Schedule 2 - Environmental Reports
Schedule 3 - Pending Litigation
Schedule 4 - List of Purchased Gift Certificates and Complimentary
Gift Certificates
Schedule 5 - Capital Projects in Process
Schedule 6 - Trade Outs
Schedule 7 - List of Pool and Tennis Club Memberships
<PAGE>
Exhibit 10.2
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is
made and entered into as of this 6th day of April, 1998, by and between
CLAREMONT HOTEL L.L.C., a Delaware limited liability company, and HARSCH
INVESTMENT CORP., an Oregon corporation (Claremont Hotel L.L.C. and Harsch
Investment Corp. are hereinafter sometimes collectively referred to as
"Seller"), and KSL RECREATION GROUP, INC., a Delaware corporation ("Buyer").
RECITALS
A. Seller and Buyer have entered into that certain Agreement of
Purchase and Sale, dated as of March 5, 1998 (the "Purchase Agreement"), for
the purchase and sale of that certain real property in Oakland, California,
commonly known as the Claremont Resort & Spa ("Property"), and more
particularly described in the Purchase Agreement. Any terms not defined
herein shall have the meaning set forth in the Purchase Agreement.
B. Seller and Buyer now desire to amend the Purchase Agreement
pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the respective agreements
hereinafter set forth, the parties hereto agree as follows:
1. AMENDMENT TO PURCHASE AGREEMENT.
(a) CONFIDENTIALITY. Notwithstanding the limitations of
confidentiality imposed by the first sentence of Section 11.2 of the Purchase
Agreement, prior to Closing, but after Buyer has indicated its satisfaction
with or waived any conditions pursuant to Section 3.1(a) of the Purchase
Agreement and after Buyer has elected to proceed with Closing as set forth in
Section 3.2 of the Purchase Agreement (the "Post Inspection Period"), Buyer
may use and/or disclose such "confidential information" (as defined in
Section 11.2 of the Purchase Agreement) as may be commercially necessary
under the circumstances to enable the Buyer to: (A) advertise for positions,
interview, background check and drug screen all applicants for consideration
of their prospective employment by Buyer at the Property, (B) notify labor
unions of the pending purchase by Buyer and/or discuss labor issues with
union representatives as deemed appropriate by Buyer, and (C) make such
disclosures and inquiries as reasonably necessary to effect the Closing,
including discussions with contractors, consultants, club members, hotel
guests, vendors, group meeting planners, members of the community, the media,
and applications to, and discussions with governmental agencies. After the
commencement of the Post-Inspection Period, Seller and Buyer shall issue a
common press release and subsequent press releases regarding the proposed
transaction, in forms reasonably approved by Seller and Buyer, to members of
the news media and trade press.
<PAGE>
(b) EXHIBITS AND SCHEDULES. Seller and Buyer acknowledge and
agree that the exhibits and schedules to the Purchase Agreement have been or
shall be revised and updated as set forth on the attached LIST OF EXHIBITS
AND SCHEDULES. In connection therewith and notwithstanding anything to the
contrary contained in the Purchase Agreement, Seller and Buyer hereby agree
that:
(i) EXHIBITS A, A-1, A-2, B, E, F, F-4, and G, and SCHEDULES
2, 5, and 6 of the Purchase Agreement are hereby deleted in their entirety
and the respective Exhibits and Schedules attached hereto shall be
substituted therefor;
(ii) EXHIBITS C AND C-1 and SCHEDULE 7 attached hereto are
incorporated in and made a part of the Purchase Agreement;
(iii) SCHEDULE 1 shall be mutually and reasonably
determined by Seller and Buyer on or before April 10, 1998;
(iv) SCHEDULE 4 shall be delivered by Seller to Buyer on or
before the Closing.
2. MISCELLANEOUS.
(a) If any provisions of this Amendment conflict with any portion
of the Purchase Agreement, the terms of this Amendment shall govern.
(b) Except as expressly amended and modified herein, the Purchase
Agreement is and remains in full force and effect in accordance with its
terms. Except as otherwise expressly set forth herein, this Amendment shall
not be construed to waive, relinquish, amend or modify any rights or remedies
of either Seller or Buyer under the Purchase Agreement.
(c) This Amendment constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement may not be
amended or modified except by a written instrument signed by each party
hereto.
<PAGE>
(d) This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER: CLAREMONT HOTEL L.L.C.,
a Delaware limited liability company
By: /s/
---------------------------------
Thomas E. Eyer
Its: Senior Vice President
HARSCH INVESTMENT CORP.,
an Oregon corporation
By: /s/
---------------------------------
Harold J. Schnitzer
Its: President
BUYER: KSL RECREATION GROUP, INC.,
a Delaware corporation
By: /s/
---------------------------------
John K Saer, Jr.
Its: Vice President and
Chief Financial Officer
<PAGE>
Exhibit 10.3
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is
made and entered into as of this 20th day of April, 1998, by and between
CLAREMONT HOTEL L.L.C., a Delaware limited liability company, and HARSCH
INVESTMENT CORP., an Oregon corporation (Claremont Hotel L.L.C. and Harsch
Investment Corp. are hereinafter sometimes collectively referred to as
"Seller"), and KSL CLAREMONT RESORT, INC., a Delaware corporation ("Buyer").
RECITALS
A. Seller and KSL Recreation Group, Inc., predecessor in interest to
Buyer, have entered into that certain Agreement of Purchase and Sale, dated
as of March 5, 1998, as amended (the "Purchase Agreement"), for the purchase
and sale of that certain real property in Oakland, California, commonly known
as the Claremont Resort & Spa ("Property"), and more particularly described
in the Purchase Agreement. Any terms not defined herein shall have the
meaning set forth in the Purchase Agreement.
B. Seller and Buyer now desire to amend the Purchase Agreement
pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the respective agreements
hereinafter set forth, the parties hereto agree as follows:
1. AMENDMENT TO PURCHASE AGREEMENT.
(a) EXHIBITS AND SCHEDULES. Seller and Buyer acknowledge and
agree that the exhibits and schedules to the Purchase Agreement have been
revised and updated as set forth on the attached LIST OF EXHIBITS AND
SCHEDULES. In connection therewith and notwithstanding anything to the
contrary contained in the Purchase Agreement, Seller and Buyer hereby agree
that:
(i) EXHIBITS C-1 AND G, and SCHEDULES 1, 5 and 7 of the
Purchase Agreement are hereby deleted in their entirety and the respective
Exhibits and Schedules attached hereto shall be substituted therefor; and
(ii) SCHEDULE 4 attached hereto is incorporated in and made a
part of the Purchase Agreement.
2. MISCELLANEOUS.
(a) If any provisions of this Amendment conflict with any portion
of the Purchase Agreement, the terms of this Amendment shall govern.
<PAGE>
(b) Except as expressly amended and modified herein, the Purchase
Agreement is and remains in full force and effect in accordance with its
terms. Except as otherwise expressly set forth herein, this Amendment shall
not be construed to waive, relinquish, amend or modify any rights or remedies
of either Seller or Buyer under the Purchase Agreement.
(c) This Amendment constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement may not be
amended or modified except by a written instrument signed by each party
hereto. This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER: CLAREMONT HOTEL L.L.C.,
a Delaware limited liability company
By: /s/
---------------------------------
Thomas E. Eyer
Its: Senior Vice President
HARSCH INVESTMENT CORP.,
an Oregon corporation
By: /s/
---------------------------------
Harold J. Schnitzer
Its: President
BUYER: KSL CLAREMONT RESORT, INC.,
a Delaware corporation
By: /s/
---------------------------------
Scott M. Dalecio
Its: President
2
<PAGE>
Exhibit 10.5
U.S. $375,000,000
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of April 20, 1998,
among
KSL RECREATION GROUP, INC.,
AS THE BORROWER,
VARIOUS FINANCIAL INSTITUTIONS,
AS THE LENDERS,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION,
AS A CO-SYNDICATION AGENT
AND THE DOCUMENTATION AGENT,
THE BANK OF NOVA SCOTIA,
AS A CO-SYNDICATION AGENT
AND THE ADMINISTRATIVE AGENT,
and
BANCAMERICA SECURITIES, INC.,
AS THE SYNDICATION AGENT.
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 20, 1998,
is among KSL RECREATION GROUP, INC. (the "BORROWER"), a Delaware corporation
and the wholly-owned Subsidiary (such term, and other capitalized terms used
herein, to have the meanings provided in SECTION 1.1) of KSL Recreation
Corporation, a Delaware corporation ("KSL"), the various financial
institutions as are or may become parties hereto (collectively, the
"LENDERS", and, individually, a "LENDER"), DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION ("DLJ"), as a co-syndication agent (in such capacity,
a "CO-SYNDICATION AGENT"), and as the documentation agent (in such capacity,
the "DOCUMENTATION AGENT"), THE BANK OF NOVA SCOTIA ("SCOTIABANK"), as a
co-syndication agent (in such capacity, a "CO-SYNDICATION AGENT", and,
together with DLJ, in such capacity, collectively, the "CO-SYNDICATION
AGENTS") and as the administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), and BANCAMERICA SECURITIES, INC. ("BANCAMERICA"), as
the syndication agent (in such capacity, the "SYNDICATION AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents are parties to a
Credit Agreement, dated as of April 30, 1997, as amended by the Amendatory
Agreement (the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders amend and restate
the Existing Credit Agreement (the Existing Credit Agreement, as so amended
and restated, being referred to as the "CREDIT AGREEMENT"); and
WHEREAS, in connection with so amending and restating the Existing
Credit Agreement and at the time of the effectiveness of such amendment and
restatement, the Borrower desires to obtain from the Lenders
(a) a Term A Loan Commitment and a Term B Loan Commitment pursuant to
which Borrowings of Term A Loans and Term B Loans will be made to the
Borrower in a single Borrowing to occur on the Closing Date in a
maximum aggregate principal amount not to exceed $50,000,000 in
respect of Term A Loans and $50,000,000 in respect of Term B Loans;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which Borrowings of Revolving Loans and Swing Line Loans, in a maximum
aggregate principal amount (together with all Letter of Credit
Outstandings) not to exceed $175,000,000 will be made
<PAGE>
to the Borrower from time to time on and subsequent to the
Closing Date but prior to the Revolving Loan Commitment
Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer
will issue Letters of Credit for the account of the Borrower from
time to time on and subsequent to the Closing Date but prior to
the Revolving Loan Commitment Termination Date in a maximum
aggregate Stated Amount at any one time outstanding not to exceed
$20,000,000 (PROVIDED, that the aggregate outstanding principal
amount of Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing
Revolving Loan Commitment Amount); and
(d) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not
to exceed $10,000,000 will be made on and subsequent to the
Closing Date but prior to the Revolving Loan Commitment
Termination Date (PROVIDED, that the aggregate outstanding
principal amount of such Swing Line Loans, Revolving Loans and
Letter of Credit Outstandings at any time shall not exceed the
then existing Revolving Loan Commitment Amount);
with all the proceeds of the Credit Extensions to be used for the purposes
specified in SECTION 7.1.10; and
WHEREAS, all Loans and Obligations shall continue to be and shall be
guaranteed pursuant to the Guaranty executed and delivered by each Restricted
Subsidiary required to do so under the Existing Credit Agreement and the
Pledge Agreement executed and delivered by the Borrower under the Existing
Credit Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including ARTICLE V), to extend such
Commitments and make such Loans to the Borrower and issue (or participate in)
Letters of Credit for the account of the Borrower;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is amended and
restated as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
<PAGE>
"ACQUISITION" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of
the Capital Stock of any Person, or otherwise causing any Person to become a
Subsidiary, (c) a merger or consolidation or any other combination with
another Person (other than with a Person that is a Restricted Subsidiary),
PROVIDED that the Borrower or one of its Restricted Subsidiaries is the
surviving entity or (d) an Unrestricted Subsidiary becoming a Restricted
Subsidiary.
"ADJUSTED EBITDA" means, with respect to any particular Person, for such
Person and its Restricted Subsidiaries, for any applicable period, the sum
(without duplication) of
(a) EBITDA of such Person and each of its Restricted Subsidiaries,
PLUS
(b) the amount of refundable membership deposits paid in cash, PLUS
principal payments in cash received on notes in respect thereof, MINUS
the amount of any refunds paid in cash in respect of such deposits or
amounts.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 9.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). With respect to any Lender or the Issuer, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, power to vote 51% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners of such "controlled"
Person. With respect to all other Persons, a Person shall be deemed to be
"controlled by" another Person if such other Person possesses, directly or
indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners of such "controlled" Person; or
(b) to direct or cause the direction of the management and policies
of such "controlled" Person whether through ownership of voting
securities, membership or partnership interests, by contract or
otherwise.
"AGENT" means, as the context may require, the Administrative Agent, the
Syndication Agent, each of the Co-Syndication Agents and/or the Documentation
Agent.
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<PAGE>
"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on
such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upward, if
necessary, to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.
Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to
the Borrower and the Lenders of changes in the Alternate Base Rate.
"AMENDATORY AGREEMENT" means the First Amendment to Credit Agreement,
dated as of April 20, 1998, among the Borrower, the Consenting Obligors, the
Lenders and the Agents parties thereto.
"ANNUAL PAYMENT DATE" means each annual anniversary of the Closing Date
or, if such day is not a Business Day, the next succeeding Business Day.
"APPLICABLE COMMITMENT FEE" means, with respect to the fee payable to
the Lenders pursuant to SECTION 3.3.1, (a) for the period following the
Closing Date through (and including) October 31, 1997, 1/2 of 1% and (b) at
all times thereafter during the applicable periods set forth below, the
applicable percentage set forth below under the column entitled "Applicable
Commitment Fee":
LEVERAGE RATIO APPLICABLE COMMITMENT FEE
Greater than 5.5:1 0.425%
Less than or equal to 5.5:1
and greater than 5.0:1 0.375%
Less than or equal to 5.0:1
and greater than 4.5:1 0.375%
Less than or equal to 4.5:1
and greater than 4.0:1 0.350%
Less than or equal to 4.0:1
and greater than 3.5:1 0.300%
-4-
<PAGE>
Less than or equal to 3.5:1
and greater than 3.0:1 0.250%
Less than or equal to 3.0:1 0.200%.
The Leverage Ratio used to compute the Applicable Commitment Fee shall be
the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent pursuant to CLAUSE (C)
of SECTION 7.1.1; changes in the Applicable Commitment Fee resulting from a
change in the Leverage Ratio shall become effective (as of the first day
following the Fiscal Quarter in respect of which such Compliance Certificate
was required to be delivered) upon delivery by the Borrower to the
Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (C)
of SECTION 7.1.1. In the event such Compliance Certificate indicates a
Leverage Ratio that would result in an Applicable Commitment Fee which is
greater or lesser than the Applicable Commitment Fee then in effect, then (A)
such greater or lesser Applicable Commitment Fee shall be deemed to be in
effect for all purposes of this Agreement from the first day following the
Fiscal Quarter in respect of which such Compliance Certificate was required
to be delivered to the Administrative Agent pursuant to CLAUSE (C) of SECTION
7.1.1 and (B) if the Borrower shall have made any payment in respect of fees
during the period from the first day following the Fiscal Quarter in respect
of which such Compliance Certificate was required to be delivered to the
actual date of delivery of such Compliance Certificate, then, on the next
Quarterly Payment Date, the Borrower shall pay in the form of a supplemental
payment of fees, an amount which equals the difference between the amount of
fees that would otherwise have been paid based on such new Leverage Ratio and
the amount of such fees so paid, or, as the case may be, an amount shall be
deducted from the fees then otherwise payable in an amount which equals the
difference between the amount of fees so paid and the amount of fees that
would otherwise have been paid based on such new Leverage Ratio.
"APPLICABLE MARGIN" means
(a) (i) with respect to the unpaid principal amount of any Term Loan
maintained as a Base Rate Loan, at all times during the applicable
periods set forth below, the applicable percentage set forth under the
column entitled "Applicable Margin for Base Rate Term Loans", and (ii)
with respect to the unpaid principal amount of any Term Loan
maintained as a LIBO Rate Loan, at all times during the applicable
periods set forth below, the applicable percentage set forth under the
column entitled "Applicable Margin for LIBO Rate Term Loans":
<TABLE>
<CAPTION>
APPLICABLE MARGIN FOR BASE APPLICABLE MARGIN FOR LIBO
LEVERAGE RATIO RATE TERM LOANS RATE TERM LOANS
-------------- -------------------------- --------------------------
<S> <C> <C>
Greater than 5.5:1 1.250% 2.500%
Less than or equal
-5-
<PAGE>
to 5.5:1 and
greater than 5.0:1 1.000% 2.250%
Less than or equal
to 5.0:1 and
greater than 4.5:1 0.750% 2.000%
Less than or equal
to 4.5:1 0.500% 1.750%
</TABLE>
(b) (i) with respect to the unpaid principal amount of each Revolving
Loan maintained as a Base Rate Loan, (x) for the period following the
Closing Date through (and including) October 31, 1997, 1.25% and (y)
at all times thereafter during the applicable periods set forth below,
the applicable percentage set forth below under the column entitled
"Applicable Margin for Base Rate Revolving Loans", and (ii) with
respect to the unpaid principal amount of each Revolving Loan
maintained as a LIBO Rate Loan, (x) for the period following the
Closing Date through (and including) October 31, 1997, 2.25% and (y)
at all times thereafter during the applicable periods set forth below,
the applicable percentage set forth below under the column entitled
"Applicable Margin for LIBO Rate Revolving Loans":
<TABLE>
<CAPTION>
APPLICABLE MARGIN FOR BASE APPLICABLE MARGIN FOR LIBO
LEVERAGE RATIO RATE REVOLVING LOANS RATE REVOLVING LOANS
-------------- -------------------------- --------------------------
<S> <C> <C>
Greater than 5.5:1 1.250% 2.250%
Less than or equal
to 5.5:1 and
greater than 5.0:1 1.000% 2.000%
Less than or equal
to 5.0:1 and
greater than 4.5:1 0.625% 1.625%
Less than or equal
to 4.5:1 and
greater than 4.0:1 0.375% 1.375%
Less than or equal
to 4.0:1 and
greater than 3.5:1 0.125% 1.125%
Less than or equal
to 3.5:1 and
greater than 3.0:1 0.000% 0.875%
-6-
<PAGE>
Less than or equal
to 3.0:1 0.000% 0.625%.
</TABLE>
The Leverage Ratio used to compute the "Applicable Margin for Base Rate
Revolving Loans" and the "Applicable Margin for LIBO Rate Revolving Loans"
shall be the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
CLAUSE (C) of SECTION 7.1.1; changes in the "Applicable Margin for Base Rate
Revolving Loans" and the "Applicable Margin for LIBO Rate Revolving Loans"
resulting from a change in the Leverage Ratio shall become effective (as of
the first day following the Fiscal Quarter in respect of which such
Compliance Certificate was required to be delivered) upon delivery by the
Borrower to the Administrative Agent of a new Compliance Certificate pursuant
to CLAUSE (C) of SECTION 7.1.1. In the event such Compliance Certificate
indicates a Leverage Ratio that would result in an Applicable Margin which is
greater or lesser than the Applicable Margin then in effect, then (A) such
greater or lesser Applicable Margin shall be deemed to be in effect for all
purposes of this Agreement from the first day following the Fiscal Quarter in
respect of which such Compliance Certificate was required to be delivered to
the Administrative Agent pursuant to CLAUSE (C) of SECTION 7.1.1 and (B) if
the Borrower shall have made any payment in respect of interest during the
period from the first day following the Fiscal Quarter in respect of which
such Compliance Certificate was required to be delivered to the actual date
of delivery of such Compliance Certificate, then, on the next Quarterly
Payment Date, the Borrower shall pay in the form of a supplemental payment of
interest, an amount which equals the difference between the amount of
interest that would otherwise have been paid based on such new Leverage Ratio
and the amount of such interest so paid, or, as the case may be, an amount
shall be credited to the Borrower in an amount which equals the difference
between the amount of interest so paid and the amount of interest that would
otherwise have been paid based on such new Leverage Ratio.
"AUTHORIZED OFFICER" means, relative to the Borrower and any other
Obligor, those of its officers whose signatures and incumbency shall have
been certified to the Agents and the Lenders pursuant to SECTION 5.1.1 and
such other officers of the Borrower as the Borrower designates in writing as
such to the Administrative Agent.
"AVAILABLE AMOUNT" means, on any date (the "REFERENCE DATE"), an amount
equal to (a) the sum of (i) the aggregate amount of net cash proceeds
received by the Borrower (x) in respect of equity contributions made to the
Borrower by Persons other than Subsidiaries of the Borrower after the Closing
Date and on or prior to the Reference Date or (y) from issuances of equity of
the Borrower after the Closing Date and on or prior to the Reference Date,
PLUS (ii) the cumulative amount of Excess Cash Flow not required to be
applied to prepayments pursuant to CLAUSE (F) of SECTION 3.1.1 on or prior to
the Reference Date, PLUS (iii) the aggregate amount of prepayments refused by
Lenders pursuant to CLAUSE (B)(I)(B) of SECTION 3.1.2 and retained by the
Borrower pursuant to CLAUSES (B)(I)(C) and (B)(I)(D) of SECTION 3.1.2, on or
prior to the Reference Date, MINUS (b) the sum of (i) the aggregate amount of
any Investments (as such aggregate
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<PAGE>
amount is determined in accordance with the definition of "Investment") made
by the Borrower or any Restricted Subsidiary pursuant to CLAUSE (J)(II) of
SECTION 7.2.5 on or prior to the Reference Date and (ii) the aggregate amount
paid by the Borrower in connection with any prepayment, repurchase or
redemption of the Senior Subordinated Notes pursuant to CLAUSE (G) of SECTION
7.2.6 on or prior to the Reference Date.
"BANCAMERICA" is defined in the PREAMBLE.
"BASE RATE" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York, New York as its base
rate for Dollars loaned in the United States. The Base Rate is not
necessarily intended to be the lowest rate of interest determined by the
Administrative Agent in connection with extensions of credit.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the PREAMBLE.
"BORROWING" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders required to
make such Loans on the same Business Day and pursuant to the same Borrowing
Request in accordance with SECTION 2.1.
"BORROWING REQUEST" means a Loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of
EXHIBIT B-1 hereto.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in New York,
New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day which is a Business Day described in CLAUSE
(A) above and which is also a day on which dealings in Dollars are
carried on in the London interbank eurodollar market.
"CAPITAL EXPENDITURES" means, for any period, the sum of (a) the
aggregate amount of all expenditures of the Borrower and its Restricted
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures, and (b)
without duplication, the aggregate amount of all cash payments made during
such period in respect of all Capitalized Lease Liabilities allocable to the
principal component thereof; PROVIDED that the term "Capital Expenditures"
shall not include (i) expenditures made in connection with the replacement,
substitution or restoration of assets (A) to the extent financed from
insurance proceeds paid on account of the loss of or damage to the assets
being replaced or
-8-
<PAGE>
restored or (B) with awards of compensation arising from the taking by
eminent domain or condemnation of the assets being replaced, (ii) the
purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment to the extent that the gross amount of such
purchase price is reduced by the credit granted by the seller of such
equipment for the equipment being traded in at such time, (iii) Capitalized
Lease Liabilities paid in respect of equipment that is leased in substitution
for, or as replacement in connection with the trade-in of, existing similar
equipment, (iv) the purchase of plant, property or equipment made within one
year of the sale of any asset in replacement of such asset to the extent
purchased with the proceeds of such sale and Capitalized Lease Liabilities
paid in respect of such replaced asset and (v) the portion of the purchase
price in connection with any Acquisition that would otherwise be included as
additions to property, plant or equipment and Capitalized Lease Liabilities
assumed or incurred in connection with any Acquisition.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of the
Borrower or any of its Restricted Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, are classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof determined
in accordance with GAAP, and the stated maturity thereof shall be determined
in accordance with GAAP.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of capital of such Person, including if such Person is
a partnership, partnership interests (whether general or limited) and any
other interest or participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of assets of, such
partnership, whether now outstanding or issued after the Effective Date.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any direct obligation of (or guaranteed by) the United States
government (or any agency or instrumentality thereof) maturing not
more than two years after the date of acquisition thereof;
(b) any direct obligation of (or guaranteed by) any state of the
United States (or any political subdivision, agency or instrumentality
thereof) maturing not more than two years after the date of
acquisition thereof and, at the time of such acquisition, rated at
least investment grade by either S&P or Moody's (or, if at any time
neither S&P or Moody's shall be rating such obligations, then from
another nationally recognized rating agency);
(c) commercial paper, maturing not more than twelve months from the
date of issue, which is issued by
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<PAGE>
(i) a corporation (other than an Affiliate of any Obligor) organized
under the laws of any state of the United States or of the District of
Columbia and rated at least A-2 by S&P or P-2 by Moody's (or, if at
any time neither S&P or Moody's shall be rating such obligations, then
from another nationally recognized rating agency), or
(ii) any Lender (or its holding company);
(d) any certificate of deposit or bankers acceptance, maturing not
more than two years after the date of acquisition thereof, which is
issued by either
(i) any bank which has a combined capital and surplus not less than
$250,000,000 (or in the case of foreign banks, the Dollar equivalent
thereof), or
(ii) any Lender;
(e) any repurchase agreement entered into with any Lender or any
commercial banking institution of the stature referred to in CLAUSE
(D)(I) above or securities dealers of recognized national standing
which
(i) is for any obligation of the type described in CLAUSE (A), (B) or
(D) above, and
(ii) has a term of not more than 30 days for underlying
obligations of the type described in CLAUSE (A), (B) or (D) above;
(f) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types of securities described in CLAUSES (A) through (E) above; and
(g) short-term, high quality liquid investments made by a Foreign
Subsidiary in the ordinary course of managing its cash.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws".
"CHANGE OF CONTROL" means, and shall be deemed to have occurred if: (a)
(i) KKR, its successors and its Affiliates and management of the Borrower shall
cease to own in the aggregate, directly or indirectly, beneficially and of
record, 35% of the outstanding Voting Stock of the Borrower (other than as the
result of (A) one or more public offerings of common stock of the Borrower or
(B) a widely distributed private placement of common stock of the Borrower that
does not provide any special director designation or special election rights or
other special corporate governance rights to the holders of such shares, in each
case whether by the Borrower or another Person) and/or (ii) any Person or
"group" (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall
at any time have acquired direct or indirect beneficial
-10-
<PAGE>
ownership of a percentage of the outstanding Voting Stock of the Borrower
that exceeds in the aggregate the percentage of such Voting Stock then
beneficially owned, directly or indirectly, by KKR, its successors and its
Affiliates and management of the Borrower, unless, in the case of either
CLAUSE(A)(I) or (A)(II) above, KKR, its successors and its Affiliates and
management of the Borrower have, at such time, the right or the ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Borrower; and/or (b) at any time
Continuing Directors shall not constitute a majority of the Board of
Directors of the Borrower.
"CLOSING DATE" means the date of the making of the initial Credit
Extensions hereunder, subject to the prior or concurrent satisfaction (or
waiver by each of the Lenders and each of the Agents) of each of the
conditions precedent set forth in ARTICLE V.
"CLOSING DATE CERTIFICATE" means the closing date certificate executed
and delivered by the Borrower pursuant to SECTION 5.1.2, substantially in the
form of EXHIBIT D hereto.
"CODE" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time
to time.
"COMMITMENT" means, as the context may require, a Lender's Term A Loan
Commitment, Term B Loan Commitment, Revolving Loan Commitment or Letter of
Credit Commitment, or the Swing Line Lender's Swing Line Loan Commitment.
"COMMITMENT AMOUNT" means, as the context may require, the Term A Loan
Commitment Amount, the Term B Loan Commitment Amount, the Revolving Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line
Loan Commitment Amount.
"COMMITMENT TERMINATION DATE" means, as the context may require, the
Term A Loan Commitment Termination Date, the Term B Loan Commitment
Termination Date or the Revolving Loan Commitment Termination Date.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default described in CLAUSES (A)
through (D) of SECTION 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of all or any portion of the Loans to be
due and payable pursuant to SECTION 8.3, or
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<PAGE>
(ii) the giving of notice by the Administrative Agent, acting at
the direction, or with the consent, of the Required Lenders, to the
Borrower that the Commitments have been terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed
by the chief executive, financial or accounting Authorized Officer of the
Borrower, substantially in the form of EXHIBIT E hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time,
together with such changes thereto as the Agents may from time to time
reasonably request for the purpose of monitoring the Borrower's compliance
with the financial covenants contained herein.
"CONFIDENTIAL MEMORANDUM" means the Confidential Information Memorandum
dated April 1997, describing the KSL Recreation Group, Inc. $275,000,000
senior secured credit facilities.
"CONSOLIDATED GROSS REVENUES" means, for any period, the consolidated
gross revenues of the Borrower and its Restricted Subsidiaries for such
period, determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any particular Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; PROVIDED, HOWEVER, that (i) any net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto)
shall be excluded, (ii) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to asset dispositions other than in
the ordinary course of business shall be excluded, or (iii) the Net Income
for such period of the referent Person attributable to any Person that is not
a Restricted Subsidiary of the Borrower, or that is accounted for by the
equity method of accounting, shall be included only to the extent of
dividends or distributions or other net payments paid in cash (or to the
extent converted into cash) to the referent Person or a Restricted Subsidiary
(except for directors' qualifying shares) in respect of such period.
"CONSOLIDATED WORKING CAPITAL" means, with respect to the Borrower, at
any date, the excess of (a) the sum of all amounts (other than cash and cash
equivalents) that would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries at such date
over (b) the sum of all amounts that would, in conformity with GAAP, be set
forth opposite the caption "total current liabilities" (or any like caption)
on a consolidated balance sheet of the Borrower and its Restricted
Subsidiaries on such date, but excluding the current portion of any Total
Funded Debt.
"CONTINGENT OBLIGATION" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, with or without recourse, to provide funds for
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payment to, to purchase from, to supply funds to, or otherwise to invest in,
a debtor, or otherwise to assure a creditor against loss) the Indebtedness of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of scheduled dividends or other
distributions upon the shares of any other Person. The amount of any Person's
obligation under any Contingent Obligation shall (subject to any limitation
set forth therein) be deemed to be the outstanding principal amount (or
maximum principal amount, if larger) of the debt, obligation or other
liability guaranteed thereby or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder), as determined by such Person in
good faith. Notwithstanding the foregoing, the term "Contingent Obligation"
shall not include (a) endorsements of instruments for deposit or collection
in the ordinary course of business, (b) guarantees made by a Person of the
obligations of a Restricted Subsidiary of such Person that do not constitute
Indebtedness of such Restricted Subsidiary and are incurred in the ordinary
course of business of such Restricted Subsidiary and (c) obligations arising
from agreements providing for indemnification or adjustment of purchase price
(or from guarantees supporting any obligations pursuant to any such
agreements) incurred in connection with the disposition of any business or
assets or Restricted Subsidiary.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTINUING DIRECTOR" means, at any date, an individual (a) who is a
member of the Board of Directors of the Borrower, as the case may be, on the
Effective Date, (b) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months (or, for the period comprising
the first 12 months after the Effective Date, has been a member of such Board
of Directors at least since the Effective Date), or (c) who has been
nominated to be a member of such Board of Directors, directly or indirectly,
by KKR or Persons nominated by KKR or has been nominated to be a member of
such Board of Directors by a majority of the other Continuing Directors then
in office.
"CORPORATE SALE TRANSACTION" means a one-time transfer (pursuant to
CLAUSE (K) of SECTION 7.2.5, CLAUSE (F) of SECTION 7.2.6 or CLAUSE (C) of
SECTION 7.2.7) of all or a portion of the Capital Stock or assets of one of
the Borrower's Restricted Subsidiaries, PROVIDED that, in any event, such
transaction shall only be permitted to the extent that (i) such transfer is
designated as the "Corporate Sale Transaction" by notice in writing from the
Borrower to the Agents, (ii) only one transaction (or series of directly
related transactions), involving a single Restricted Subsidiary (and any of
its Subsidiaries), may be designated as the "Corporate Sale Transaction",
(iii) both immediately before and after giving effect to such "Corporate Sale
Transaction", no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (iv) immediately after giving PRO FORMA
effect to such "Corporate Sale Transaction", as if such transaction had
occurred at the beginning of the applicable Test Period, (A) the Interest
Coverage Ratio as of the end of the applicable Test Period would not be any
lower than the Interest
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Coverage Ratio set forth in the Compliance Certificate most recently
delivered to the Administrative Agent pursuant to SECTION 7.1.1 for the Test
Period immediately prior to giving effect to such transaction and (B) the
Leverage Ratio as of the end of the applicable Test Period would not be any
greater than the Leverage Ratio set forth in the Compliance Certificate most
recently delivered to the Administrative Agent pursuant to SECTION 7.1.1 for
the Test Period immediately prior to giving effect to such transaction and
(v) the Borrower shall have delivered to the Agents prior to the consummation
of such transaction a certificate of the Borrower executed by its chief
financial Authorized Officer stating that the statements made in the
foregoing CLAUSES (III) and (IV) are true and correct and demonstrating (in
reasonable detail, including with respect to appropriate calculations and
computations) compliance with the requirements set forth in SUBCLAUSES (A)
and (B) of the foregoing CLAUSE (IV).
"CO-SYNDICATION AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as a successor
Co-Syndication Agent pursuant to SECTION 9.4.
"CREDIT AGREEMENT" is defined in the SECOND RECITAL.
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by the Issuer.
"CREDIT EXTENSION REQUEST" means, as the context may require, any
Borrowing Request or Issuance Request.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"DEFAULTING LENDER" means any Lender with respect to which a Lender
Default is in effect.
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent
of the Agents and the Required Lenders.
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<PAGE>
"DISPOSITION" means the sale, conveyance, issuance or other disposition
of any property, business or assets by the Borrower or any Restricted
Subsidiary (including receivables of or owned by, and Capital Stock owned by,
the Borrower or such Restricted Subsidiary, and in all cases whether now
owned or hereafter acquired), other than (a) the issuance of Capital Stock of
the Borrower, (b) sales, conveyances or other dispositions in the ordinary
course of business (including sales, conveyances or other dispositions of
inventory in the ordinary course and including sales, conveyances or other
dispositions in the ordinary course of business of condominium units and
other similar interests in real property in connection with the Borrower's
property development and property management activities in an aggregate
amount not to exceed $10,000,000 during the term of this Agreement) and (c)
the Corporate Sale Transaction.
"DLJ" is defined in the PREAMBLE.
"DOCUMENTATION AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been appointed as the successor
Documentation Agent pursuant to SECTION 9.4.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" below its name in ANNEX
I hereto or as set forth in a Lender Assignment Agreement, or such other
office of a Lender (or any successor or assign of such Lender) within the
United States as may be designated from time to time by notice from such
Lender, as the case may be, to each other Person party hereto.
"DOMESTIC SUBSIDIARY" means any Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" means, with respect to any particular Person, for such Person
and its Restricted Subsidiaries, for any applicable period, the sum (without
duplication) of
(a) Consolidated Net Income of such Person and its Restricted
Subsidiaries,
PLUS
(b) the amount deducted by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person
and its Restricted Subsidiaries, representing non-cash charges,
including in respect of amortization, depreciation, restructuring
charges or reserves, other reserves and non-recurring charges,
PLUS
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(c) the amount deducted, in determining Consolidated Net Income of
such Person and its Restricted Subsidiaries, of all federal, state and
local income taxes (whether paid in cash or deferred) of such Person
and its Restricted Subsidiaries,
PLUS
(d) the amount deducted, in determining Consolidated Net Income of
such Person and its Restricted Subsidiaries, of Interest Expense and
non-cash interest expense of such Person and its Restricted
Subsidiaries,
MINUS
(e) the amount included by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person
and its Restricted Subsidiaries, representing non-cash gains,
MINUS
(f) the amount included by such Person and its Restricted
Subsidiaries, in determining Consolidated Net Income of such Person
and its Restricted Subsidiaries, representing non-recurring gains.
"EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 5.1.
"ELIGIBLE ASSIGNEE" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any fund that is
regularly engaged in making, purchasing or investing in loans or any Person
that would satisfy the requirements of an "accredited investor" (as defined
in SEC Regulation D, but excluding a natural person).
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations (other than internal reports
prepared by the Borrower or any of its Subsidiaries (a) in the ordinary
course of such Person's business or (b) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter,
"CLAIMS"), including, without limitation, (i) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
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<PAGE>
"ENVIRONMENTAL LAWS" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions,
permits, orders, and determinations of any governmental authority that have
the force and effect of law, pertaining to pollution (including Hazardous
Materials), natural resources or the environment, whether federal, state, or
local, including environmental response laws such as the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, and as the same may
be further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means any of the following if such event or occurrence
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (a) the failure to make a required contribution to
a Pension Plan if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC
to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
which might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of
any liability under Title IV of ERISA other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCESS CASH FLOW" means, for any Fiscal Year, the excess (if any), of
(a) the sum for such Fiscal Year, without duplication, of:
(i) Consolidated Net Income of the Borrower and its Restricted
Subsidiaries;
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PLUS
(ii) the amount deducted by the Borrower and its Restricted
Subsidiaries, in determining Consolidated Net Income of the Borrower
and its Restricted Subsidiaries, representing non-cash charges,
including in respect of amortization, depreciation, restructuring
charges or reserves, other reserves and non-recurring charges;
PLUS
(iii) decreases in Consolidated Working Capital;
OVER
(b) the sum for such Fiscal Year, without duplication, of
(i) the amount included by the Borrower and its Restricted
Subsidiaries of all non-cash credits, in determining Consolidated Net
Income;
PLUS
(ii) the aggregate amount of all principal payments of
Indebtedness of the Borrower or its Restricted Subsidiaries (including
any Term Loans and the principal component of payments in respect of
Capitalized Lease Liabilities but excluding Term Loans prepaid
pursuant to CLAUSE (F) of SECTION 3.1.1) made during such Fiscal Year
(other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments
thereunder);
PLUS
(iii) to the extent accompanied by a permanent reduction in the
Revolving Loan Commitment Amount, voluntary prepayments of the
principal amount of Revolving Loans and Swing Line Loans;
PLUS
(iv) increases in Consolidated Working Capital;
PLUS
(v) Capital Expenditures permitted hereunder and actually made by the
Borrower and its Restricted Subsidiaries in such Fiscal Year
(excluding the principal amount of Indebtedness incurred in connection
with such Capital
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Expenditures, whether incurred in such Fiscal Year
or in a subsequent Fiscal Year);
PLUS
(vi) the amount of cash payments by the Borrower and its
Restricted Subsidiaries during such Fiscal Year in respect of
long-term liabilities of the Borrower and its Restricted
Subsidiaries other than Indebtedness;
PLUS
(vii) the amount of Investments made during such Fiscal Year in
cash pursuant to CLAUSE (E), (H), (I) or (J) of SECTION 7.2.5 to the
extent that such Investments were financed with internally generated
cash flow of the Borrower and its Restricted Subsidiaries;
PLUS
(viii) the aggregate amount of expenditures actually made by the
Borrower and its Restricted Subsidiaries in cash during such Fiscal
Year (including expenditures for the payment of financing fees) to the
extent that such expenditures are not expensed during such Fiscal
Year;
PLUS
(ix) the aggregate amount of dividends paid to KSL in accordance
with CLAUSES (D), (E) and (H) of SECTION 7.2.6;
PROVIDED, HOWEVER, that Excess Cash Flow for any Fiscal Year shall not be
deemed to be less than zero.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"FEDERAL FUNDS RATE" means, for any day, a fluctuating interest rate per
annum equal to
(a) the rate set forth in the weekly statistical release designated
as H.15(519), or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, "H.15(519)")
on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or
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<PAGE>
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers
of recognized standing selected by it.
"FEE LETTER" means that certain confidential letter, dated April 4,
1997, among KSL and the Agents.
"FIRST AMENDMENT EFFECTIVE DATE" means the date of effectiveness of
Amendment No. 1 pursuant to the terms thereof.
"FISCAL QUARTER" means any quarter of a Fiscal Year ending on the last
day of January, April, July or October.
"FISCAL YEAR" means any period of twelve consecutive calendar months
ending on October 31; references to a Fiscal Year with a number corresponding
to any calendar year (E.G., the "1997 Fiscal Year") refer to the Fiscal Year
ending on October 31 of such calendar year.
"FISCAL YEAR END" is defined in SECTION 7.1.13.
"FIXED CHARGE COVERAGE RATIO" means, as of the close of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter
and each of the three immediately prior Fiscal Quarters with respect to the
Borrower and its Restricted Subsidiaries on a consolidated basis of:
(a) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
(for all such Fiscal Quarters);
TO
(b) the sum (for all such Fiscal Quarters) of
(i) Interest Expense of the Borrower and its Restricted Subsidiaries;
PLUS
(ii) scheduled principal repayments of the Term Loans pursuant to
the provisions of CLAUSES (C) and (D) of SECTION 3.1.1 after giving
effect to any reductions in such scheduled principal repayments
attributable to any optional or mandatory prepayments of the Term
Loans;
PLUS
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(iii) all federal, state and foreign income taxes actually paid in
cash by the Borrower and its Restricted Subsidiaries (including
payments made to any Affiliate of the Borrower other than a Restricted
Subsidiary in respect of any tax sharing agreement, including the Tax
Sharing Agreement);
PLUS
(iv) Ordinary Capital Expenditures;
PLUS
(v) dividends made by the Borrower in cash pursuant to SECTION 7.2.6;
PROVIDED, HOWEVER, that in computing the Fixed Charge Coverage Ratio for the
fourth Fiscal Quarter of the 1997 Fiscal Year, the amount set forth in CLAUSE
(B) above shall equal the sum of the amounts set forth in CLAUSE (B) for such
Fiscal Quarter and the two immediately preceding Fiscal Quarters, multiplied
by 4/3.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States,
(b) which conducts the major portion of its business outside of the United
States and (c) all or substantially all of the property and assets of which
are located outside of the United States.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including any corporation or other entity owned or controlled,
through stock or capital ownership or otherwise, by any of the foregoing.
"GUARANTY" means the guaranty executed and delivered by each Restricted
Subsidiary required to do so hereunder that is a direct or indirect Domestic
Subsidiary of the Borrower pursuant to the terms of this Agreement,
substantially in the form of EXHIBIT G hereto, as amended, supplemented,
amended and restated or otherwise modified.
"HAZARDOUS MATERIALS" means any substance that is defined or listed as a
hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future
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Environmental Law because of its hazardous, toxic, or dangerous properties,
including (a) any substance that is a "hazardous substance" under CERCLA and
(b) petroleum wastes or products.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities
of such Person under currency exchange agreements, interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and all other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of the Borrower, any qualification or exception to such opinion or
certification
(a) which questions the status of the Borrower and its Restricted
Subsidiaries, taken as a whole, as a "going concern";
(b) which relates to the limited scope of examination of any material
portion of the records of the Borrower and its Restricted Subsidiaries
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be
to cause the Borrower to be in default of any of its obligations under
SECTION 7.2.4.
"INCLUDING" and "INCLUDE" means including without limiting the generality
of any description preceding such term.
"INCREASED COMMITMENT AMOUNT" is defined in SECTION 10.1.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
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(d) net monetary liabilities of such Person under all Hedging
Obligations (calculated, at any time, as the aggregate amount (giving
effect to any netting agreements) that the Borrower or a Restricted
Subsidiary would be required to pay if the agreements giving rise to
such Hedging Obligations were terminated at such time);
(e) all obligations of such Person to pay the deferred purchase price
of property or services that, in accordance with GAAP, would be
included on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;
(f) all indebtedness referred to in CLAUSES (A), (B), (C) and (E)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; and
(g) all Contingent Obligations of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, unless the express terms of
the relevant partnership or joint venture agreement provide that liabilities
incurred in connection therewith are completely without recourse to such
Person or is of limited recourse to such Person, in which case the amount of
Indebtedness of such Person in respect thereof shall be limited to the extent
of such recourse against such Person.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, rehabilitation, dissolution, winding-up or relief
of debtors or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion
of its creditors, undertaken under U.S. Federal, state or foreign law,
including the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Section 101, ET
SEQ.).
"INTEREST COVERAGE RATIO" means, at the close of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of:
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(a) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
(for all such Fiscal Quarters)
TO
(b) the sum (for all such Fiscal Quarters) of Interest Expense of the
Borrower and its Restricted Subsidiaries;
PROVIDED, HOWEVER, that in computing the Interest Coverage Ratio for
(c) the second Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall equal the Interest Expense of the
Borrower and its Restricted Subsidiaries for such Fiscal Quarter,
multiplied by four;
(d) the third Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall equal the aggregate Interest Expense
of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the immediately preceding Fiscal Quarter, multiplied by
two; and
(e) the fourth Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall equal the aggregate Interest Expense
of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the two immediately preceding Fiscal Quarters, multiplied
by 4/3.
"INTEREST EXPENSE" means, for any Fiscal Quarter, the aggregate cash
interest expense (net of cash interest income) of the Borrower and its
Restricted Subsidiaries for such Fiscal Quarter, as determined in accordance
with GAAP, including the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to interest expense, but excluding
deferred financing costs and other non-cash interest expense.
"INTEREST PERIOD" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to
such date one, two, three or six (or, if available to all the Lenders making
such Loans as determined by such Lenders in good faith based on prevailing
market conditions, nine or twelve) months thereafter (or, if such month has
no numerically corresponding day, on the last Business Day of such month), as
the Borrower may select in its relevant notice pursuant to SECTION 2.3 or
2.4; PROVIDED, HOWEVER, that
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on
more than fifteen different dates (PROVIDED, that, in any event, the
Borrower shall not be permitted to select Interest Periods to be in
effect at any one time which have expiration dates occurring on
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more than ten different dates with respect to Revolving Loans, ten
different dates with respect to Term A Loans and ten different dates
with respect to Term B Loans);
(b) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person;
(b) any Contingent Obligation of such Person incurred in connection
with loans or advances described in CLAUSE (A); and
(c) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity, or distributions or
dividends paid, thereon and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair value of such property at the
time of such Investment, as determined in good faith by the Borrower.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form
of EXHIBIT B-2 hereto.
"ISSUER" means Scotiabank in its capacity as issuer of the Letters of
Credit, together with each other Person as shall have subsequently been
appointed as the successor Issuer in accordance with SECTION 9.4. At the
request of Scotiabank or such successor Issuer, another Lender with a
Revolving Loan Commitment or an Affiliate of Scotiabank may issue one or more
Letters of Credit hereunder and shall be deemed to be the Issuer with respect
to such Letters of Credit.
"KKR" means Kohlberg Kravis Roberts & Co., L.P.
"KSL" is defined in the PREAMBLE.
"LENDER ASSIGNMENT AGREEMENT" means a lender assignment agreement
substantially in the form of EXHIBIT H hereto.
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"LENDER DEFAULT" means, as a result of the appointment of a receiver or
conservator with respect to any Lender, at the direction or request of any
regulatory agency or authority, either (a) the refusal or failure (which has
not been retracted or cured) of such Lender to make available its portion of
any Borrowing or to fund its portion of any unreimbursed payment under
SECTION 2.6.1 or (b) such Lender having notified the Administrative Agent
and/or the Borrower that it does not intend to comply with its obligations
under SECTION 2.1 or under SECTION 2.6.1.
"LENDERS" is defined in the PREAMBLE and, in addition, shall include any
Eligible Assignee that becomes a Lender pursuant to SECTION 10.11.1.
"LENDER'S ENVIRONMENTAL LIABILITY" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential
damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys' fees at trial and appellate levels and
experts' fees and disbursements and expenses incurred in investigating,
defending against or prosecuting any litigation, claim or proceeding) which
may at any time be imposed upon, incurred by or asserted or awarded against
any Indemnified Party in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries,
the groundwater thereunder, or any surrounding areas thereof to the
extent caused by Releases from the Borrower's or any of the Borrower's
Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in SECTION 6.12;
(c) any violation or claim of violation by the Borrower or any of its
Subsidiaries of any Environmental Laws (including any Environmental
Claim); or
(d) the imposition of any lien for damages caused by or the recovery
of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrower or any of its Subsidiaries, or in
connection with any property owned or formerly owned by the Borrower
or any of its Subsidiaries.
"LETTER OF CREDIT" is defined in SECTION 2.1.2.
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.2 and,
with respect to each of the other Lenders that has a Revolving Loan
Commitment, the obligations of each such Lender to participate in such
Letters of Credit pursuant to SECTION 2.6.1.
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"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum
amount of $20,000,000, as such amount may be permanently reduced from time to
time pursuant to SECTION 2.2.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
PLUS
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LEVERAGE RATIO" means, as of the last day of any Fiscal Quarter, the ratio
of
(a) Total Funded Debt (net of unrestricted cash of the Borrower and
its Restricted Subsidiaries) outstanding on the last day of such
Fiscal Quarter
TO
(b) Adjusted EBITDA of the Borrower and its Restricted Subsidiaries
computed for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters (provided that, with
respect to any Restricted Subsidiary created or acquired at any time
during such period, Adjusted EBITDA of such Restricted Subsidiary
shall be determined on a PRO FORMA basis as if such Restricted
Subsidiary were created or acquired on the first day of such period);
PROVIDED, HOWEVER, that in computing the Leverage Ratio for
(c) the second Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter, multiplied by four;
(d) the third Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the immediately preceding Fiscal Quarter, multiplied by
two; and
(e) the fourth Fiscal Quarter of the 1997 Fiscal Year, the amount set
forth in CLAUSE (B) above shall be determined by reference to Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for such Fiscal
Quarter and the two immediately preceding Fiscal Quarters, multiplied
by 4/3.
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"LIBO RATE" means, with respect to each day during each Interest Period
pertaining to a LIBO Rate Loan, the rate of interest per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing
on Telerate Page 3750 as of 11:00 a.m., London time, two Business Days prior
to the beginning of such Interest Period. In the event that such rate does
not appear on Telerate Page 3750, "LIBO Rate" for the purposes of this
paragraph shall be determined by reference to such other publicly available
service for displaying eurodollar rates as may be agreed upon by the Agents
and the Borrower or, in the absence of such agreement, "LIBO Rate" for the
purposes of this paragraph shall instead be the rate per annum equal to the
arithmetic average of the respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate at which such Reference
Lender is offered Dollar deposits at or about 11:00 a.m., London time, two
Business Days prior to the beginning of such Interest Period, in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its LIBO Rate Loans are then being
conducted for delivery.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" below its name in ANNEX I hereto
or as set forth in a Lender Assignment Agreement, or such other office of a
Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
hypothecation, charge, lien (statutory or other), escrow or similar
encumbrance of any kind, or any other type of similar preferential
arrangement (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the
nature thereof).
"LOAN DOCUMENTS" collectively means this Agreement, the Notes (if any),
the Letters of Credit, the Pledge Agreement, the Guaranty, each Borrowing
Request, each Issuance Request and the Fee Letter.
"LOANS" means, as the context may require, a Revolving Loan, a Term A
Loan, a Term B Loan or a Swing Line Loan, of any type.
"MATERIAL ADVERSE CHANGE" means any change in the business, assets,
operations, properties or financial condition of the Borrower and its
Restricted Subsidiaries taken as a whole that would materially adversely
affect the ability of the Borrower and the other Obligors taken as a whole to
perform their obligations under this Agreement and the other Loan Documents
taken as a whole.
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"MATERIAL ADVERSE EFFECT" means a circumstance or condition affecting
the business, assets, operations, properties or financial condition of the
Borrower and its Restricted Subsidiaries taken as a whole that would
materially adversely affect (a) the ability of the Borrower and the other
Obligors taken as a whole to perform their obligations under this Agreement
and the other Loan Documents taken as a whole or (b) the rights and remedies
of the Administrative Agent and the Lenders under this Agreement and the
other Loan Documents taken as a whole.
"MATERIAL RESTRICTED SUBSIDIARY" means, at any time, each Restricted
Subsidiary having at such time either (a) net sales (on a consolidated basis,
including each of its Subsidiaries that constitute Restricted Subsidiaries,
but excluding revenues received by any Restricted Subsidiary from the
Borrower or any other Restricted Subsidiary) for the applicable Test Period
in excess of 5% of the net sales of the Borrower and its Restricted
Subsidiaries for such Test Period or (b) total assets (on a consolidated
basis, including each of its Subsidiaries that constitute Restricted
Subsidiaries), as of the last day of the preceding Fiscal Quarter,
constituting in excess of 5% of the total assets of the Borrower and its
Restricted Subsidiaries as of such day, in each case, based upon the
Borrower's most recent annual or quarterly financial statements delivered to
the Administrative Agent under SECTION 7.1.1 in accordance with GAAP (it
being acknowledged and understood that, in the event the determination of
whether a Restricted Subsidiary is a Material Restricted Subsidiary is to be
made on or about the date such Restricted Subsidiary was created or acquired,
such determination shall be made on a PRO FORMA basis as if such Restricted
Subsidiary were a Restricted Subsidiary at the commencement of such Test
Period for purposes of CLAUSE (A) above and on the last day of such Fiscal
Quarter for purposes of CLAUSE (B) above; PROVIDED, HOWEVER, that,
notwithstanding anything to the contrary in the foregoing, if, at any time,
"Material Restricted Subsidiaries" as defined above, taken together with the
Borrower, on a consolidated basis, account for less than 80% of Adjusted
EBITDA of the Borrower and its Restricted Subsidiaries for the applicable
Test Period based upon the Borrower's most recent annual or quarterly
financial statements delivered to the Administrative Agent pursuant to
SECTION 7.1.1, then the term "Material Restricted Subsidiaries" shall be
deemed to include such number of the largest (pursuant to the foregoing
criteria) Restricted Subsidiaries as is sufficient to cause "Material
Restricted Subsidiaries" to account for at least 80% of such Adjusted EBITDA
as set forth above.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan," within the meaning of
Section 4001(a)(3) of ERISA, with respect to which the Borrower or any ERISA
Affiliate may have any liability.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto with similar authority.
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"NET DISPOSITION PROCEEDS" means, as to any Disposition by a Person
(other than a Disposition permitted pursuant to CLAUSE (A) of SECTION 7.2.7),
proceeds in cash as and when received by such Person, net of (a) the costs
and expenses relating to such Disposition, (b) the amount of all taxes paid
or reasonably estimated to be payable by such Person in connection therewith,
but Net Disposition Proceeds shall include the excess, if any, of the
estimated taxes payable in connection with such Disposition over the actual
amount of taxes paid, immediately after the payment of such taxes, (c)
amounts required to be applied to repay principal, interest and prepayment
premiums and penalties on Indebtedness secured by a Lien on the asset which
is the subject of such Disposition, and (d) the amount of any reasonable
reserve established in accordance with GAAP against any liabilities (other
than any taxes deducted pursuant to CLAUSE (B) above) associated with the
assets sold or disposed of and retained by the Borrower or any of its
Restricted Subsidiaries (PROVIDED that the amount of any subsequent reduction
of such reserve (other than in connection with a payment in respect of any
such liability) shall be deemed to be Net Disposition Proceeds realized on
the date of such reduction).
"NET INCOME" means, for any period, the net income (or loss) included in
accordance with GAAP as such on the consolidated financial statements of the
Borrower and its Restricted Subsidiaries for such period.
"NET ISSUANCE PROCEEDS" means, as to any issuance of indebtedness for
borrowed money or incurrence of Capitalized Lease Liabilities by any Person,
cash proceeds received by such Person in connection therewith, net of all
costs and expenses paid in connection therewith.
"NON-DEFAULTING LENDER" means and includes each Lender other than a
"Defaulting Lender".
"NON-PERFORMING LENDER" means any Lender that either (a) refuses or
fails (which refusal or failure has not been retracted or cured) to make
available its portion of any Borrowing or to fund its portion of any
unreimbursed payment under SECTION 2.6.1 or (b) has notified the
Administrative Agent and/or the Borrower that it does not intend to comply
with its obligations under SECTION 2.1 or under SECTION 2.6.1.
"NON-U.S. LENDER" has the meaning specified in SECTION 4.6(D).
"NON-U.S. PARTICIPANT" means a Participant that is not incorporated or
organized in or under the laws of the United States or a state thereof.
"NOTE" means, as the context may require, a Revolving Note, a Term A
Note, a Term B Note or a Swing Line Note.
"OBLIGATIONS" means all monetary obligations (whether absolute or
contingent, matured or unmatured, direct or indirect, choate or inchoate,
sole, joint, several or joint and several, due or to become due, heretofore
or hereafter contracted or acquired) of the Borrower and each other
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Obligor to any Lender or Issuer or Agent arising under this Agreement, any
Rate Protection Agreement, the Notes, the Letters of Credit and each other
Loan Document.
"OBLIGOR" means, as the context may require, the Borrower, each
Restricted Subsidiary and any other Person (other than any Agent, the Issuer
or any Lender) to the extent such Person is obligated under this Agreement or
any other Loan Document.
"ORDINARY CAPITAL EXPENDITURES" means, for any period, the lesser of (a)
Capital Expenditures actually made during such period and (b) an amount equal
to 3.5% of Consolidated Gross Revenues for such period.
"ORGANIC DOCUMENT" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership,
partnership agreement, certificate of formation or limited liability
agreement and any certificate of designations or similar instrument relating
to the rights of preferred shareholders of such Person.
"OTHER TAXES" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
this Agreement or any other Loan Document.
"PARTICIPANT" is defined in SECTION 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA (other than a Multiemployer Plan) with
respect to which the Borrower or any ERISA Affiliate may have any liability.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Revolving Loans, Term A Loans or Term B Loans, as the case may
be, as set forth below its name in ANNEX I hereto under the applicable column
heading or as set forth in a Lender Assignment Agreement under the applicable
column heading, as such percentage may be adjusted from time to time pursuant
to Lender Assignment Agreement(s) executed by such Lender and the Eligible
Assignee(s) and delivered pursuant to SECTION 10.11.1. A Lender shall not
have any Commitment to make Revolving Loans, Term A Loans or Term B Loans (as
the case may be) if its percentage under the respective column heading is
zero (0%).
"PERMITTED ACQUISITION" is defined in CLAUSE (I) of SECTION 7.2.5.
"PERSON" means any natural person, corporation, limited liability
company, partnership, joint venture, joint stock company, firm, association,
trust or unincorporated organization,
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government, governmental agency, court or any other legal entity, whether
acting in an individual, fiduciary or other capacity.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors or maintains or to which the Borrower
makes, is making or is obligated to make contributions and includes any
Pension Plan.
"PLEDGE AGREEMENT" means the Pledge Agreement executed and delivered by
the Borrower, substantially in the form of EXHIBIT F hereto, as amended,
supplemented, amended and restated or otherwise modified.
"QUARTERLY PAYMENT DATE" means the last day of each January, April, July
and October, or, if any such day is not a Business Day, the next succeeding
Business Day.
"RATE PROTECTION AGREEMENT" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower pursuant to the
terms of this Agreement under which the counterparty to such agreement is (or
at the time such Rate Protection Agreement was entered into, was) a Lender or
an Affiliate of a Lender.
"REFERENCE LENDERS" means Scotiabank and Bank of America Illinois.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (B) of SECTION 2.3.2.
"REGISTER" is defined in SECTION 10.11.1(C).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RENTALS" means, for any period and determined in accordance with GAAP,
all fixed payments made by the Borrower or any of its Restricted
Subsidiaries, as lessee or sublessee under any lease of real or personal
property (including as such all payments that the Borrower or any of its
Restricted Subsidiaries, as the case may be, is obligated to make to the
lessor on termination of the lease or surrender of the property), but shall
be exclusive of any amounts required to be paid by the Borrower or any such
Restricted Subsidiary (whether or not designated as rents or additional
rents) on account of maintenance, repairs, insurance, taxes, assessments and
similar charges.
"REPLACED LENDER" is defined in SECTION 4.4.
"REPLACEMENT LENDER" is defined in SECTION 4.4.
"REQUIRED LENDERS" means, at any time,
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(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having a majority of the
Commitments, taken as a whole, of the Non-Defaulting Lenders); and
(b) on and after Closing Date, Non-Defaulting Lenders having or
holding a majority of the sum (without duplication) of the aggregate
outstanding principal amount of the Loans, the aggregate amount of the
Letter of Credit Outstandings and the unfunded amount of the Revolving
Loan Commitment Amount, in each case, taken as a whole, of the
Non-Defaulting Lenders).
"REQUIRED REVOLVING LENDERS" means, at any time, Non-Defaulting Lenders
having or holding a majority of the sum (without duplication) of the
aggregate outstanding principal amount of the Revolving Loans and Swing Line
Loans, the aggregate amount of the Letter of Credit Outstandings and the
unfunded amount of the Revolving Loan Commitment Amount, in each case, taken
as a whole, of the Non-Defaulting Lenders.
"REQUIRED TERM LENDERS" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having a majority of the Term A Loan
Commitment and the Term B Loan Commitment, taken as a whole, of the
Non-Defaulting Lenders; and
(b) on and after Closing Date, Non-Defaulting Lenders holding a
majority of the aggregate outstanding principal amount of the Term
Loans, taken as a whole, of the Non-Defaulting Lenders.
"REQUIREMENT OF LAW" means, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any of its property
or to which the Person or any of its property is subject.
"RESPONSIBLE OFFICER" means, with respect to any Person, its chief
executive officer, its president or any vice president, managing director,
chief financial officer, treasurer, controller or other officer thereof
having substantially the same authority and responsibility.
"RESTRICTED SUBSIDIARY" means each Subsidiary of the Borrower other than
an Unrestricted Subsidiary.
"REVOLVING LOAN" is defined in SECTION 2.1.1.
"REVOLVING LOAN COMMITMENT" means, relative to any Lender, such Lender's
obligation (if any) to make Revolving Loans pursuant to CLAUSE (A) of SECTION
2.1.1.
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"REVOLVING LOAN COMMITMENT AMOUNT" means, prior to the First Amendment
Effective Date, $175,000,000, and thereafter, $275,000,000, as such amount
may be reduced from time to time pursuant to SECTION 2.2.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) April 30, 1997 (if the initial Credit Extension has not occurred
on or prior to such date);
(b) the Business Day immediately preceding April 30, 2004 (I.E., the
seven year anniversary date of the Closing Date);
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to SECTION 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding CLAUSE (C) or
(D), the Revolving Loan Commitments shall terminate automatically and without
any further action.
"REVOLVING NOTE" means a promissory note, if any, executed by the
Borrower and payable to any Lender, in the form of EXHIBIT A-1 hereto (as
such promissory note may be amended, endorsed or otherwise modified from time
to time), evidencing the aggregate Indebtedness of the Borrower to such
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"S&P" means Standard & Poor's Rating Services.
"SCOTIABANK" is defined in the PREAMBLE.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR SUBORDINATED INDENTURE" means the Indenture dated as of April
30, 1997, between the Borrower and First Trust of New York, National
Association, as trustee, pursuant to which the Senior Subordinated Notes were
issued.
"SENIOR SUBORDINATED NOTES" means, collectively, the 10 1/4% Senior
Subordinated Notes due 2007 of the Borrower issued pursuant to the Senior
Subordinated Indenture.
"SPECIFIED REAL PROPERTIES" means all or any part of the real property
listed on SCHEDULE II hereto, including any fixtures or improvements thereon.
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"STATED AMOUNT" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof,
as such amount may be amended from time to time.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY DATE" means
(a) with respect to all Swing Line Loans and Revolving Loans, April
30, 2004 (I.E., the seven year anniversary date of the Closing Date);
(b) with respect to all Term A Loans, April 30, 2005 (I.E., the eight
year anniversary date of the Closing Date); and
(c) with respect to all Term B Loans, April 30, 2006 (I.E., the nine
year anniversary date of the Closing Date).
"SUBORDINATED DEBT" means the unsecured Indebtedness of the Borrower
evidenced by the Senior Subordinated Indenture and the Senior Subordinated
Notes.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the
outstanding capital stock (or other ownership interest) having ordinary
voting power to elect a majority of the board of directors, managers or other
voting members of the governing body of such entity (irrespective of whether
at the time capital stock (or other ownership interest) of any other class or
classes of such entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned by such
Person, by such Person and one or more other Subsidiaries of such Person, or
by one or more other Subsidiaries of such Person. Unless the context
otherwise specifically requires, the term "Subsidiary" shall be a reference
to a Subsidiary of the Borrower.
"SUPERMAJORITY REVOLVING LENDERS" means, at any time, Non-Defaulting
Lenders having or holding at least 66-2/3% of the sum (without duplication)
of the aggregate outstanding principal amount of the Revolving Loans and the
Swing Line Loans, the aggregate amount of the Letter of Credit Outstandings
and the unfunded amount of the Revolving Loan Commitment Amount, in each
case, taken as a whole, of the Non-Defaulting Lenders.
"SUPERMAJORITY TERM A AND B LENDERS" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Non-Defaulting Lenders having at least 66-2/3% of the Term
A Loan Commitment and Term B Loan Commitment, taken as a whole, of the
Non-Defaulting Lenders; and
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(b) on and after the Closing Date, Non-Defaulting Lenders having or
holding at least 66-2/3% of the aggregate outstanding principal amount
of the Term Loans, taken as a whole, of the Non-Defaulting Lenders.
"SWING LINE LENDER" means, subject to the terms of this Agreement,
Scotiabank, its successors and assigns.
"SWING LINE LOAN" is defined in CLAUSE (B) of SECTION 2.1.1.
"SWING LINE LOAN COMMITMENT" is defined in CLAUSE (B) of SECTION 2.1.1.
"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $10,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note, if any, executed by the
Borrower and payable to the Swing Line Lender pursuant to CLAUSE (B) of
SECTION 2.7, in the form of EXHIBIT A-4 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"SYNDICATION AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to SECTION 9.4.
"TAX SHARING AGREEMENT" means that certain Tax Sharing Agreement, dated
as of April 30, 1997, by and between KSL and each of its Affiliates parties
thereto.
"TAXES" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, respectively, taxes imposed on any Lender or the
Administrative Agent as a result of a present or former connection between
such Lender or the Administrative Agent and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Lender or the Administrative Agent having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement).
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on the service
or such other service as may be nominated by the British Bankers' Association
as the information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for Dollar deposits).
"TERM A LOAN" is defined in CLAUSE (A) of SECTION 2.1.3.
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"TERM A LOAN COMMITMENT" means, relative to any Lender, such Lender's
obligation (if any) to make Term A Loans pursuant to CLAUSE (A) of SECTION
2.1.3.
"TERM A LOAN COMMITMENT AMOUNT" means, on any date, $50,000,000.
"TERM A LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) April 30, 1997 (if the Term A Loans have not been made on or
prior to such date);
(b) the Closing Date (immediately after the making of the Term A
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (B) or (C), the Term A
Loan Commitments shall terminate automatically and without any further action.
"TERM A NOTE" means a promissory note, if any, executed by the Borrower
and payable to any Lender, in the form of EXHIBIT A-2 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Term A Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"TERM B LOAN" is defined in CLAUSE (B) of SECTION 2.1.3.
"TERM B LOAN COMMITMENT" means, relative to any Lender, such Lender's
obligation (if any) to make Term B Loans pursuant to CLAUSE (B) of SECTION
2.1.3.
"TERM B LOAN COMMITMENT AMOUNT" means, on any date, $50,000,000.
"TERM B LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) April 30, 1997 (if the Term B Loans have not been made on or
prior to such date);
(b) the Closing Date (immediately after the making of the Term B
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
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Upon the occurrence of any event described in CLAUSE (B) or (C), the Term B
Loan Commitments shall terminate automatically and without any further action.
"TERM B NOTE" means a promissory note, if any, executed by the Borrower
and payable to any Lender, in the form of EXHIBIT A-3 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Term B Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"TERM LOANS" means, collectively, the Term A Loans and the Term B Loans.
"TEST PERIOD" means, for any determination under this Agreement at any
time, the four consecutive Fiscal Quarters of the Borrower then last ended.
"TOTAL FUNDED DEBT" means, on any date, the outstanding principal amount
of all Indebtedness of the Borrower and its Restricted Subsidiaries of the
type referred to in CLAUSE (A) and CLAUSE (C), and unreimbursed drawings in
respect of Indebtedness described in CLAUSE (B), in each case of the
definition of "Indebtedness" (exclusive of intercompany Indebtedness between
the Borrower and any of its Subsidiaries or between any Subsidiaries of the
Borrower).
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"UCP" is defined in SECTION 2.6.6.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Code for the applicable plan year.
"UNITED STATES" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the Borrower that
is first created or acquired by the Borrower or a Restricted Subsidiary after
the Closing Date to the extent the acquisition price therefor is funded by
the Borrower or such Restricted Subsidiary in accordance with CLAUSE (J) of
SECTION 7.2.5 and such Subsidiary is designated by the Borrower as an
Unrestricted Subsidiary in a written notice delivered to the Agents prior to
or reasonably promptly after such creation or acquisition or (b) any
Subsidiary of the Borrower that is first created or acquired after the
Closing Date by another Unrestricted Subsidiary created or acquired
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in accordance with the provisions of this definition or (c) any Restricted
Subsidiary existing on the Closing Date which is subsequently re-designated
as an Unrestricted Subsidiary by the Borrower in a written notice to the
Agents, PROVIDED that such re-designation shall be deemed to be an Investment
pursuant to CLAUSE (J) of SECTION 7.2.5 on the date of such re-designation in
an Unrestricted Subsidiary in an amount equal to the sum of (x) the net worth
of such re-designated Restricted Subsidiary immediately prior to such
re-designation (such net worth to be calculated without regard to any
Guaranty provided by such re-designated Restricted Subsidiary) and (y) the
aggregate principal amount of any Indebtedness owed by such re-designated
Restricted Subsidiary to the Borrower or any other Restricted Subsidiary
immediately prior to such re-designation, all calculated, except as set forth
in the parenthetical to the foregoing CLAUSE (X), on a consolidated basis in
accordance with GAAP; PROVIDED that in any case (in the case of either CLAUSE
(A), (B) or (C) above), the provisions of CLAUSE (J) of SECTION 7.2.5 are not
breached in connection with such creation or acquisition or re-designation,
and that promptly after the date of such creation or acquisition or
re-designation, as applicable, such Subsidiary and the Borrower enter into a
tax sharing agreement containing terms that, in the reasonable judgment of
the Agents, provide for appropriate allocation of tax liabilities and
benefits. Notwithstanding anything to the contrary herein, (i) a Restricted
Subsidiary cannot be a Subsidiary of an Unrestricted Subsidiary, (ii) an
Unrestricted Subsidiary cannot be designated as a Restricted Subsidiary
except with prior written notice to the Agents and as otherwise provided in
CLAUSE (I) of SECTION 7.2.5, (iii) at the time of any written re-designation
by the Borrower to the Agents of any Unrestricted Subsidiary as a Restricted
Subsidiary, the Unrestricted Subsidiary so re-designated shall no longer
constitute an Unrestricted Subsidiary, (iv) no Unrestricted Subsidiary may be
re-designated as a Restricted Subsidiary if a Default or Event of Default has
occurred and is continuing or would result from such re-designation, (v) no
Restricted Subsidiary may be re-designated as an Unrestricted Subsidiary if a
Default or Event of Default has occurred and is continuing or would result
from such re-designation and (vi) in order for any Unrestricted Subsidiary to
be permitted to be created or acquired or to continue to exist, no recourse
whatsoever may be had to the Borrower or any of its Restricted Subsidiaries
or any of their respective properties in respect of any obligations or
liabilities (contingent or otherwise) of such Unrestricted Subsidiary except
to the extent the aggregate maximum amount of such recourse constitutes an
Investment made and permitted pursuant to CLAUSE (J) of SECTION 7.2.5.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"WHOLLY-OWNED" means, with respect to any direct or indirect Subsidiary,
any Subsidiary all of the outstanding Capital Stock of which is owned
directly or indirectly by the Borrower.
SECTION I.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document, the
Disclosure Schedule, or any Borrowing Request, Issuance Request,
Continuation/Conversion Notice, Compliance Certificate, Closing Date
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Certificate, solvency certificate, Lender Assignment Agreement, notice or
other communications delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION I.3. CROSS-REFERENCES. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section
are references to such Article or Section of this Agreement or such other
Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references
to such clause of such Article, Section or definition.
SECTION I.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document, or in any Compliance Certificate or solvency certificate, shall be
interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be
prepared, in accordance with, those generally accepted accounting principles
("GAAP") applied in the preparation of the financial statements referred to
in CLAUSE (A) of SECTION 5.1.5; PROVIDED, HOWEVER, that at any time the
computations determining compliance with SECTION 7.2 utilize accounting
principles different from those utilized in the financial statements
furnished to the Lenders pursuant to SECTION 7.1.1, such financial statements
shall be accompanied by reconciliation work-sheets. Unless otherwise
expressly provided, all financial covenants and defined financial terms shall
be computed on a consolidated basis for the Borrower and its Restricted
Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION II.1. COMMITMENTS. On the terms and subject to the conditions
of this Agreement (including SECTION 2.1.4, SECTION 2.1.5 and ARTICLE V),
(a each Lender severally agrees to make Loans (other than Swing Line
Loans) pursuant to the Commitments and the Swing Line Lender severally
agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment, in each case as described in this SECTION 2.1; and
(b the Issuer severally agrees that it will issue Letters of Credit
pursuant to SECTION 2.1.2, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to SECTION 2.6.1.
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SECTION II.1.1. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN COMMITMENT.
(a) From time to time on any Business Day occurring from and after the
Closing Date but prior to the Revolving Loan Commitment Termination Date,
each Lender that has a Revolving Loan Commitment will make loans (relative to
such Lender, its "REVOLVING LOANS") to the Borrower equal to such Lender's
Percentage of the aggregate amount of each Borrowing of the Revolving Loans
requested by the Borrower to be made on such day. The Commitment of each
such Lender described in this SECTION 2.1.1 is herein referred to as its
"REVOLVING LOAN COMMITMENT". On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow the
Revolving Loans.
(b From time to time on any Business Day occurring from and after the
Closing Date but prior to the Revolving Loan Commitment Termination Date, the
Swing Line Lender will make loans (the "SWING LINE LOANS") to the Borrower
equal to the principal amount of the Swing Line Loan requested by the
Borrower to be made on such day. The Commitment of the Swing Line Lender
described in this CLAUSE (B) is herein referred to as its "SWING LINE LOAN
COMMITMENT". On the terms and subject to the conditions hereof, the Borrower
may from time to time borrow, prepay and reborrow Swing Line Loans.
SECTION II.1.2. LETTER OF CREDIT COMMITMENT. From time to time on any
Business Day occurring from and after the Closing Date but prior to the
Revolving Loan Commitment Termination Date, the Issuer will
(a issue one or more standby or documentary letters of credit (the
"LETTERS OF CREDIT") for the account of the Borrower in the Stated
Amount requested by the Borrower on such day; or
(b extend the Stated Expiry Date of an existing standby Letter of
Credit previously issued hereunder to a date not later than the
earlier of (x) the Revolving Loan Commitment Termination Date and
(y) one year from the date of such extension.
SECTION II.1.3. TERM LOAN COMMITMENT. In a single Borrowing (which
shall be a Business Day) occurring on or prior to the applicable Commitment
Termination Date, each Lender that has a Term A Loan Commitment or a Term B
Loan Commitment, as applicable,
(a will make loans (relative to such Lender, its "TERM A LOANS") to
the Borrower equal to such Lender's Percentage of the aggregate amount
of the Borrowing of Term A Loans requested by the Borrower to be made
on such day (with the commitment of each such Lender described in this
CLAUSE (A) herein referred to as its "TERM A LOAN COMMITMENT"); and
(b will make loans (relative to such Lender, its "TERM B LOANS") to
the Borrower equal to such Lender's Percentage of the aggregate amount
of the Borrowing of Term B Loans requested by the Borrower to be made
on such day (with the commitment of each
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such Lender described in this CLAUSE (B) herein referred to as its
"TERM B LOAN COMMITMENT").
No amounts paid or prepaid with respect to Term A Loans or Term B Loans may
be reborrowed.
SECTION II.1.4. LENDERS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No
Lender shall be permitted or required to make any Loan if, after giving
effect thereto, the aggregate outstanding principal amount of
(a all Revolving Loans
(i of all Lenders with a Revolving Loan Commitment and the
outstanding principal amount of all Swing Line Loans, together
with the aggregate amount of all Letter of Credit Outstandings,
would exceed the then existing Revolving Loan Commitment Amount;
or
(ii of such Lender with a Revolving Loan Commitment, together
with such Lender's Percentage of the aggregate amount of all
Letter of Credit Outstandings, and such Lender's Percentage of the
outstanding principal amount of all Swing Line Loans, would exceed
such Lender's Percentage of the then existing Revolving Loan
Commitment Amount;
(b all Term A Loans or all Term B Loans (as the case may be)
(i of all Lenders made on the Closing Date would exceed the
Term A Loan Commitment Amount (in the case of Term A Loans) or
the Term B Loan Commitment Amount (in the case of Term B Loans);
or
(ii of such Lender with a Term A Loan Commitment or with a Term B
Loan Commitment, as applicable, made on the Closing Date would
exceed such Lender's Percentage of the Term A Loan Commitment
Amount (in the case of Term A Loans) or the Term B Loan Commitment
Amount (in the case of Term B Loans); or
(c all Swing Line Loans would exceed the then existing Swing Line
Loan Commitment Amount.
SECTION II.1.5. ISSUER NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF
CREDIT. The Issuer shall not be permitted or required to issue any Letter of
Credit if,
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(a) after giving effect thereto, (i) the aggregate amount of all
Letter of Credit Outstandings would exceed the Letter of Credit
Commitment Amount or (ii) the sum of the aggregate amount of all
Letter of Credit Outstandings plus the aggregate principal amount of
all Revolving Loans and Swing Line Loans then outstanding would exceed
the Revolving Loan Commitment Amount; or
(b) a Lender Default known to the Issuer exists or the Issuer becomes
aware of any Lender being a Non-Performing Lender, unless the Issuer
has entered into arrangements reasonably satisfactory to it and the
Borrower to eliminate the Issuer's risk with respect to the
participation in Letter of Credit Outstandings by each Defaulting
Lender and each Non-Performing Lender, including cash collateralizing
such Defaulting Lender's (or such Non-Performing Lender's, as the case
may be) Percentage of Letter of Credit Outstandings in respect
thereof.
SECTION II.2. REDUCTION OF THE COMMITMENT AMOUNTS. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section
2.2.
SECTION II.2.1. OPTIONAL. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the
amount of the Revolving Loan Commitment Amount, the Swing Line Loan
Commitment Amount or the Letter of Credit Commitment Amount on the Business
Day so specified by the Borrower; PROVIDED, HOWEVER, that all such reductions
shall require at least three Business Day's prior notice to the
Administrative Agent (and the Swing Line Lender in the case of a reduction to
the Swing Line Commitment Amount) and shall be permanent, and any partial
reduction of any Commitment Amount shall be in a minimum amount of $1,000,000
and in an integral multiple of $250,000.
SECTION II.2.2. MANDATORY. On each anniversary date of the Closing
Date set forth below, the then Revolving Loan Commitment Amount shall,
without any further action, automatically and permanently be reduced to the
amount set forth opposite such anniversary date (unless on or prior to any
such date the then Revolving Loan Commitment Amount shall have been reduced
to a lesser amount, in which case the Revolving Loan Commitment Amount shall
be equal to such lesser amount):
<TABLE>
<CAPTION>
ANNIVERSARY DATE OF AMOUNT OF REDUCED REVOLVING
THE CLOSING DATE LOAN COMMITMENT AMOUNT
------------------- ---------------------------
<S> <C>
three year anniversary date $257,320,000
four year anniversary date $239,640,000
five year anniversary date $216,070,000
six year anniversary date $186,610,000;
</TABLE>
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PROVIDED, HOWEVER, that on the Revolving Loan Commitment Termination Date,
the Revolving Loan Commitment Amount shall be zero.
SECTION II.3. BORROWING PROCEDURES. Loans (other than Swing Line Loans)
shall be made by the Lenders in accordance with SECTION 2.3.1, and Swing Line
Loans shall be made by the Swing Line Lender in accordance with SECTION 2.3.2.
SECTION II.3.1. BORROWING PROCEDURE. In the case of other than Swing
Line Loans, by delivering a Borrowing Request to the Administrative Agent on
or before 2:00 p.m., New York City time, on a Business Day, the Borrower may
from time to time irrevocably request, on not less than one Business Day's
notice in the case of Base Rate Loans, or three Business Days' notice in the
case of LIBO Rate Loans, and in either case not more than five Business Days'
notice, that a Borrowing be made, in the case of LIBO Rate Loans, in a
minimum amount of $5,000,000 and an integral multiple of $500,000, in the
case of Base Rate Loans, in a minimum amount of $5,000,000 and an integral
multiple of $500,000 or, in either case, in the unused amount of the
applicable Commitment, or, in the case of Refunded Swing Line Loans, the
amount thereof. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of Loans, and shall
be made on the Business Day, specified in such Borrowing Request. In the
case of other than Swing Line Loans, on or before 12:00 noon (New York City
time) on such Business Day each Lender that has a Commitment to make the
Loans being requested shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the
extent funds are received from the Lenders, the Administrative Agent shall
make such funds available to the Borrower by wire transfer to the accounts
the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure
to make any Loan.
SECTION II.3.2. SWING LINE LOANS. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Administrative Agent and the Swing Line Lender on or before
12:00 noon, New York City time, on the Business Day the proposed Swing Line
Loan is to be made, the Borrower may from time to time irrevocably request
that Swing Line Loans be made by the Swing Line Lender in an aggregate
minimum principal amount of $250,000 and an integral multiple of $50,000.
All Swing Line Loans shall be made as Base Rate Loans and shall not be
entitled to be converted into LIBO Rate Loans. The proceeds of each Swing
Line Loan shall be made available by the Swing Line Lender, by its close of
business on the Business Day telephonic notice is received by it as provided
in this CLAUSE (A), to the Borrower by wire transfer to the account the
Borrower shall have specified in its notice therefor.
(b If
(i any Swing Line Loan shall be outstanding for more than five Business
Days;
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(ii any Swing Line Loan is or will be outstanding on a date when the
Borrower requests that a Revolving Loan be made; or
(iii any Default shall occur and be continuing,
each Lender with a Revolving Loan Commitment (other than the Swing Line
Lender) irrevocably agrees that it will, at the request of the Administrative
Agent (on behalf of, and at the request of, the Swing Line Lender), make a
Revolving Loan (which shall initially be funded as a Base Rate Loan) in an
amount equal to such Lender's Percentage of the aggregate principal amount of
all such Swing Line Loans then outstanding (such outstanding Swing Line Loans
being hereinafter referred to as the "REFUNDED SWING LINE LOANS"). On or
before 11:00 a.m. (New York City time) on the first Business Day following
receipt by each Lender of a request to make Revolving Loans as provided in
the preceding sentence, each such Lender with a Revolving Loan Commitment
shall deposit in an account specified by the Swing Line Lender the amount so
requested in same day funds and such funds shall be applied by the Swing Line
Lender to repay the Refunded Swing Line Loans. At the time the
aforementioned Lenders make the above referenced Revolving Loans the Swing
Line Lender shall be deemed to have made, in consideration of the making of
the Refunded Swing Line Loans, Revolving Loans in an amount equal to its
Percentage of the aggregate principal amount of the Refunded Swing Line
Loans. Upon the making (or deemed making, in the case of the Swing Line
Lender) of any Revolving Loans pursuant to this CLAUSE (B), the amount so
funded shall become outstanding under such Lender's Revolving Note and shall
no longer be owed under the Swing Line Note. All interest payable with
respect to any Revolving Loans made (or deemed made, in the case of the Swing
Line Lender) pursuant to this CLAUSE (B) shall be appropriately adjusted to
reflect the period of time during which the Swing Line Lender had outstanding
Swing Line Loans in respect of which such Revolving Loans were made. Each
Lender's obligation (in the case of Lenders with a Revolving Loan Commitment)
to make the Revolving Loans referred to in this CLAUSE (B) shall be absolute
and unconditional and shall not be affected by any circumstance, including
(i) any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of any
Default; (iii) any adverse change in the condition (financial or otherwise)
of the Borrower; (iv) the acceleration or maturity of any Loans or the
termination of any Commitment after the making of any Swing Line Loan; (v)
any breach of this Agreement or any other Loan Document by the Borrower or
any Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent or the Swing Line Lender, as the case may be, may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent or the Swing Line
Lender, as the case may be, in good faith to be from an Authorized Officer of
the Borrower (or a designee of such Authorized Officer). In each such case
the record of the Administrative Agent or the
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Swing Line Lender, as the case may be, of the terms of any such telephonic
notice shall be conclusive absent manifest error.
SECTION II.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York City time, on a Business Day, the Borrower may from time to
time irrevocably elect, on not less than one Business Days' notice in the
case of any Loans that are to be converted into Base Rate Loans, or three
Business Days' notice in the case of any Loans that are to be continued as,
or converted into, LIBO Rate Loans, and in either case not more than five
Business Days' notice, that all, or any portion in an aggregate minimum
amount of $5,000,000 and an integral multiple of $250,000, in the case of any
Loans that are to be continued as, or converted into, LIBO Rate Loans, or an
aggregate minimum amount of $5,000,000 and an integral multiple of $250,000,
in the case of any Loans that are to be converted into Base Rate Loans, be,
in the case of Base Rate Loans, converted into LIBO Rate Loans or be, in the
case of LIBO Rate Loans, converted into Base Rate Loans or continued as LIBO
Rate Loans (in the absence of delivery of a Continuation/Conversion Notice
with respect to any LIBO Rate Loan at least three Business Days (but not more
than five Business Days) before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically be continued as a LIBO Rate Loan having an Interest Period of
one month); PROVIDED, HOWEVER, that (x) each such conversion or continuation
shall be pro rated among the applicable outstanding Loans of all Lenders that
have made such Loans, and (y) if any Default is in existence at the
applicable time of any proposed continuation of, or conversion into, any LIBO
Rate Loans and the Administrative Agent has, or the Required Lenders have,
determined in its or their sole discretion not to permit such continuation or
conversion and have notified the Borrower telephonically or in writing
thereof, the Borrower may not elect to have a Loan converted into or
continued as a LIBO Rate Loan and any outstanding LIBO Rate Loans shall be
automatically converted on the last day of the current Interest Period
applicable thereto into a Base Rate Loan.
SECTION II.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such LIBO Rate Loan;
PROVIDED, HOWEVER, that such LIBO Rate Loan shall nonetheless be deemed to
have been made and to be held by such Lender, and the obligation of the
Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender
for the account of such foreign branch, Affiliate or international banking
facility; PROVIDED, FURTHER, that in no event shall the Borrower be obligated
to pay to any Lender any amounts pursuant to SECTION 4.1, 4.2, 4.3 or 4.5
that would not have arisen but for such Lender's election pursuant to the
first sentence of this Section (it being acknowledged and agreed that any
change in lending office or other action taken by a Lender in accordance with
SECTION 4.7 shall not be considered to be an "election" by such Lender under
this Section).
SECTION II.6. ISSUANCE PROCEDURES. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York City time, on a
Business Day, the Borrower
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may, from time to time irrevocably request, on not less than three nor more
than ten Business Days' notice, in the case of an initial issuance of a
Letter of Credit for the account of the Borrower, and not less than three
Business Days' prior notice to the date any issued Letter of Credit
containing an "evergreen" or similar automatic extension feature is scheduled
to automatically be extended unless the beneficiary thereof shall have
received notice to the contrary from the Issuer and subject to the Issuer's
right not to extend if the conditions precedent to issuance of such a Letter
of Credit would not be satisfied, in the case of a request for the extension
of the Stated Expiry Date of a standby Letter of Credit, that the Issuer
issue, or extend the Stated Expiry Date of, as the case may be, an
irrevocable Letter of Credit in such form as may be requested by the Borrower
and approved by the Issuer, solely for the purposes described in SECTION
7.1.10. Each Letter of Credit shall by its terms be stated to expire on a
date (its "STATED EXPIRY DATE") no later than the earlier to occur of
(a in the case of a standby Letter of Credit, (i) the Revolving Loan
Commitment Termination Date or (ii) one year from the date of its
issuance; and
(b in the case of a documentary Letter of Credit, (i) the Revolving
Loan Commitment Termination Date and (ii) 180 days from the date of
its issuance.
The Issuer will make available to the beneficiary thereof the original of
each Letter of Credit which it issues hereunder.
SECTION II.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan
Commitment shall be deemed to have irrevocably purchased, to the extent of
its Percentage to make Revolving Loans, a participation interest in such
Letter of Credit (including the Contingent Obligation and any Reimbursement
Obligation with respect thereto), and such Lender shall, to the extent of its
Revolving Loan Commitment Percentage, be responsible for reimbursing promptly
(and in any event within one Business Day) the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with
SECTION 2.6.3. In addition, such Lender shall, to the extent of its
Percentage to make Revolving Loans, be entitled to receive a ratable portion
of the Letter of Credit fees payable pursuant to SECTION 3.3.3 with respect
to each Letter of Credit (other than the issuance fees payable to the Issuer
of such Letter of Credit pursuant to the last sentence of SECTION 3.3.3) and
of interest payable pursuant to SECTION 3.2 with respect to any Reimbursement
Obligation. To the extent that any Lender has reimbursed the Issuer for a
Disbursement as required by this Section, such Lender shall be entitled to
receive its ratable portion of any amounts subsequently received (from the
Borrower or otherwise) in respect of such Disbursement.
SECTION II.6.2. DISBURSEMENTS. The Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any
Letter of Credit issued by the Issuer, together with notice of the date (the
"DISBURSEMENT DATE") such payment shall be made (each such payment, a
"DISBURSEMENT"). Subject to the terms and provisions of such Letter
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of Credit and this Agreement, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 11:00 a.m.,
New York City time, on the first Business Day following the Disbursement
Date, the Borrower will reimburse the Administrative Agent, for the account
of the Issuer, for all amounts which the Issuer has disbursed under such
Letter of Credit, together with interest thereon at a rate per annum equal to
the rate per annum then in effect for Base Rate Loans (with the then
Applicable Margin for Revolving Loans accruing on such amount) pursuant to
SECTION 3.2 for the period from the Disbursement Date through the date of
such reimbursement; PROVIDED, HOWEVER, that unless the Borrower shall have
notified the Administrative Agent and the Issuer prior to such time on the
Disbursement date, the Borrower will be deemed to have requested (and shall
deliver a Borrowing Request within one Business Day of the Disbursement Date
confirming) that a Swing Line Loan be made in the amount of such
reimbursement and the Administrative Agent shall so notify the Swing Line
Lender who shall, subject to the conditions set forth herein (except for the
notice, the minimum principal amount and the integral amount requirements),
make a Swing Line Loan in such amount (the proceeds of which will be wired to
the Issuer unless the Issuer and the Swing Line Lender are the same Person,
in which case a book-entry transfer may be made). Without limiting in any
way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
Issuer upon each Disbursement of a Letter of Credit.
SECTION II.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT
OBLIGATION") of the Borrower under SECTION 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and, upon the
failure of the Borrower to reimburse the Issuer, each Lender's (to the extent
it has a Revolving Loan Commitment) obligation under SECTION 2.6.1 to
reimburse the Issuer, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower or such Lender, as the case may be, may have or
have had against the Issuer or any such Lender, including any defense based
upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
PROVIDED, HOWEVER, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall preclude the right of such Lender to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct as determined by a court of competent
jurisdiction on the part of the Issuer; PROVIDED, FURTHER, that, in any
event, the Borrower may have a claim against the Issuer, and the Issuer may
be liable to the extent (but only to the extent) of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the Issuer's wilful misconduct or gross
negligence as determined by a court of competent jurisdiction or the Issuer's
wilful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a demand for payment strictly complying with the terms
and conditions of such Letter of Credit.
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SECTION II.6.4. DEEMED DISBURSEMENTS. Upon the occurrence of any
Default of the nature described in CLAUSES (A) through (D) of SECTION 8.1.9
with respect to the Borrower,
(a an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued and
outstanding hereunder shall, without demand upon or notice to the
Borrower, be deemed to have been paid or disbursed by the Issuer under
such Letters of Credit (notwithstanding that such amount may not in
fact have been so paid or disbursed); and
(b upon notification by the Administrative Agent to the Borrower of
its obligations under this Section, the Borrower shall be immediately
obligated to reimburse the Issuer for the amount deemed to have been
so paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral
security for the Obligations in connection with the Letters of Credit issued
by the Issuer. At such time when the Defaults or Events of Default giving
rise to the deemed disbursements hereunder shall have been cured or waived,
the Administrative Agent shall return to the Borrower all amounts then on
deposit with the Administrative Agent pursuant to this Section which have not
been applied to the satisfaction of such Obligations.
SECTION II.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. The Borrower and,
to the extent set forth in SECTION 2.6.1, each Lender with a Revolving Loan
Commitment shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the
extent of its own gross negligence or wilful misconduct) shall not be
responsible for:
(a the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party
in connection with the application for and issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;
(c failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
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(e any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of
Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of
the rights or powers granted to the Issuer or any Lender with a Revolving
Loan Commitment hereunder. In furtherance and extension and not in
limitation or derogation of any of the foregoing, any action taken or omitted
to be taken by the Issuer in good faith (and not constituting gross
negligence or willful misconduct) shall be binding upon the Borrower and each
such Lender, and shall not put the Issuer under any resulting liability to
the Borrower or any such Lender, as the case may be.
SECTION II.6.6. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce ("UCP") most recently at the time of issuance of any Letter of
Credit shall (unless otherwise expressly provided in the Letters of Credit)
apply to such Letter of Credit.
SECTION II.7. LOAN ACCOUNTS AND NOTES. (a) The Loans made by each
Lender and the Letters of Credit issued by the Issuer shall be evidenced by
one or more loan accounts or records maintained by such Lender or the Issuer,
as the case may be, in the ordinary course of business. The loan accounts or
records maintained by the Administrative Agent, the Issuer and each Lender
shall be conclusive absent clearly demonstrable error of the amount of the
Loans made by the Lenders to, and the Letters of Credit issued by the Issuer
for the account of, the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Loans and the Reimbursement Obligations.
(b Upon the request of any Lender made through the Administrative
Agent, solely to facilitate the pledge or assignment of its Loans to any
Federal Reserve Bank pursuant to CLAUSE (b) of SECTION 10.11.1, the Loans
made by such Lender may be evidenced by one or more Notes, instead of or in
addition to loan accounts. Each such Lender is irrevocably authorized by the
Borrower to endorse on the schedules annexed to its Note(s) the date, amount
and maturity of each Loan made, continued or converted by it and the amount
of each payment of principal made by the Borrower with respect thereto. Each
such Lender's record shall be conclusive absent clearly demonstrable error;
PROVIDED, HOWEVER, that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any such
Note to such Lender.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. REPAYMENTS AND PREPAYMENTS; APPLICATION.
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SECTION III.1.1. REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans
shall or may be made as set forth below.
(a VOLUNTARY PREPAYMENTS. From time to time on any Business Day, the
Borrower may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any
(i Loans (other than Swing Line Loans); PROVIDED, HOWEVER, that
(A0 any such prepayment of the Term A Loans or Term B Loans shall be
applied to the Term A Loans and/or Term B Loans as the Borrower shall
direct (or, in the absence of any such direction, PRO RATA among Term
A Loans and Term B Loans), and subject to such application, shall be
made PRO RATA among Term A Loans and Term B Loans, as applicable, of
the same type and, if applicable, having the same Interest Period of
all Lenders that have made such Term A Loans or Term B Loans (with the
amounts so allocated to the Term A Loans or the Term B Loans being
applied to the remaining amortization payments for the Term A Loans
and the Term B Loans, as the case may be, in such amounts as the
Borrower shall determine) and any such prepayment of Revolving Loans
shall be made PRO RATA among the Revolving Loans of the same type and,
if applicable, having the same Interest Period of all Lenders that
have made such Revolving Loans;
(B0 all such voluntary prepayments shall require at least one but no
more than five Business Days' prior written notice to the
Administrative Agent; and
(C0 all such voluntary partial prepayments shall be, in the case of
LIBO Rate Loans, in an aggregate minimum amount of $1,000,000 and an
integral multiple of $250,000 and, in the case of Base Rate Loans, in
an aggregate minimum amount of $1,000,000 and an integral multiple of
$250,000; and
(ii Swing Line Loans, PROVIDED that
(A0 all such voluntary prepayments shall require prior telephonic
notice to the Administrative Agent (which shall promptly notify the
Swing Line Lender) on or before 1:00 p.m., New York City time, on the
day of such prepayment (such notice to be confirmed in writing by the
Borrower within 24 hours thereafter); and
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(B0 all such voluntary partial prepayments shall be in an aggregate
minimum amount of $250,000 and an integral multiple of $100,000.
(b EXCEEDING THE REVOLVING LOAN COMMITMENT AMOUNT. On each date when
the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans and (ii) the aggregate amount of
all Letter of Credit Outstandings exceeds the Revolving Loan
Commitment Amount (as it may be reduced from time to time, including
pursuant to SECTIONS 2.2 and 3.1), the Borrower shall make a mandatory
prepayment of first, all Swing Line Loans, then, all Revolving Loans
and, if necessary, give cash collateral to the Administrative Agent
pursuant to an agreement satisfactory to the Agents to collateralize
Letter of Credit Outstandings, in an aggregate amount equal to such
excess.
(c SCHEDULED REPAYMENTS OF TERM A LOANS. On the Stated Maturity Date
and on each Annual Payment Date, the Borrower shall make a scheduled
repayment of the aggregate outstanding principal amount, if any, of
all Term A Loans in such amount equal to the amount necessary to fully
amortize the Term A Loans by the aggregate annual principal repayment
amount set forth below (or such other amount after giving effect to
any adjustments in respect of any optional and/or mandatory
prepayments of the Term A Loans) opposite each year of amortization
set forth below:
YEAR OF
AMORTIZATION ANNUAL
FROM PRINCIPAL
CLOSING DATE REPAYMENT AMOUNT
------------ ----------------
1 $ 500,000
2 $ 500,000
3 $ 500,000
4 $ 500,000
5 $ 500,000
6 $ 500,000
7 $ 500,000
8 $46,500,000
(d SCHEDULED REPAYMENTS OF TERM B LOANS. On the Stated Maturity Date
and on each Annual Payment Date, the Borrower shall make a scheduled
repayment of the aggregate outstanding principal amount, if any, of all
Term B Loans in such amount
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equal to the amount necessary to fully amortize the Term B Loans by
the aggregate annual principal amount set forth below (or such
other amount after giving effect to any adjustments in respect of
any optional and/or mandatory prepayments of the Term B Loans)
opposite each year of amortization:
YEAR OF
AMORTIZATION ANNUAL
FROM PRINCIPAL
CLOSING DATE REPAYMENT AMOUNT
------------ ----------------
1 $ 500,000
2 $ 500,000
3 $ 500,000
4 $ 500,000
5 $ 500,000
6 $ 500,000
7 $ 500,000
8 $ 500,000
9 $46,000,000
(e ASSET DISPOSITIONS. If the Borrower or any Restricted
Subsidiary shall at any time make a Disposition (other than a
Disposition permitted pursuant to CLAUSE (A) or (B) of SECTION
7.2.7 and other than a Disposition constituting the Corporate Sale
Transaction) for aggregate Net Disposition Proceeds of $100,000 or
more, then (i) the Borrower or such Restricted Subsidiary may,
within 360 days after the receipt by the Borrower or such
Restricted Subsidiary of the Net Disposition Proceeds of such
Disposition, (A) so long as no Event of Default or payment Default
has occurred and is then continuing or would result therefrom
(except in the case where the Borrower or such Restricted
Subsidiary is subject to a definitive agreement that has been duly
and fully executed at a time when no Event of Default or payment
Default existed and pursuant to which it is obligated to use such
Net Disposition Proceeds for a purpose permitted by this CLAUSE
(E)), reinvest up to 100% of such Net Disposition Proceeds in the
businesses described in SECTION 7.1.12, (B) prepay the Term Loans
within such 360-day period in an amount equal to such Net
Disposition Proceeds (or a portion thereof) or (C) retain the
amount of such Net Disposition Proceeds not so applied pending such
application and (ii) to the extent such Net Disposition Proceeds
are not so applied during such 360-day period and the aggregate
amount of all such Net Disposition Proceeds not so applied since
the last prepayment made pursuant to this CLAUSE (E) equals or
exceeds $1,000,000, the Borrower shall make a mandatory prepayment
of the Term Loans on the Business Day immediately
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succeeding the last day of such 360-day period in an aggregate amount equal
to the portion of such Net Disposition Proceeds not so applied.
(f) EXCESS CASH FLOW. For each Fiscal Year on the last day of which
the Leverage Ratio for such Fiscal Year is more than 4.5 to 1.0, the
Borrower shall, not later than the day on which financial statements
for such Fiscal Year are required to be delivered pursuant to CLAUSE
(B) of SECTION 7.1.1, make a mandatory prepayment of the Term Loans in
an aggregate amount equal to fifty percent (50%) of Excess Cash Flow,
if any, for such Fiscal Year; PROVIDED, that the first Fiscal Year in
respect of which such amount shall be required to be so applied shall
be the Fiscal Year ending October 31, 1998.
(g) INDEBTEDNESS ISSUANCE. If the Borrower shall, subject to the
written consent of the Required Lenders, issue indebtedness for
borrowed money or incur Capitalized Lease Liabilities not otherwise
permitted to be issued or incurred pursuant to SECTION 7.2.2, the
Borrower shall promptly upon, and in no event later than five Business
Days following, receipt by the Borrower of Net Issuance Proceeds of
such issuance or incurrence, make a mandatory prepayment of the Term
Loans in an aggregate amount equal to the amount of such Net Issuance
Proceeds.
(h) ACCELERATION OF MATURITY. Immediately upon any acceleration of
the Stated Maturity Date of any Loans pursuant to SECTION 8.2 or
SECTION 8.3, the Borrower shall repay all the Loans, unless, pursuant
to SECTION 8.3, only a portion of all the Loans is so accelerated (in
which case the portion so accelerated shall be so prepaid).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.5. No prepayment
of principal of any Revolving Loans or Swing Line Loans pursuant to CLAUSE
(A) or (B) of this Section shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may
be.
SECTION III.1.2. APPLICATION. Amounts prepaid shall be applied as set
forth in this Section.
(a) Subject to CLAUSE (B) and CLAUSE (C) below, each prepayment or
repayment of the principal of the Loans shall be applied, to the extent of
such prepayment or repayment, as the Borrower shall direct (and in the
absence of such direction, shall be applied FIRST, to the principal amount
thereof being maintained as Base Rate Loans, and SECOND, to the principal
amount thereof being maintained as LIBO Rate Loans with the shortest
Interest Periods remaining); PROVIDED, that prepayments or repayments of
LIBO Rate Loans not made on the last day of the Interest Period with
respect thereto, shall be prepaid or repaid subject to the provisions of
SECTION 4.5 (together with a payment of all accrued interest). In the case
of any mandatory prepayments of Loans are to be made
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pursuant to CLAUSES (E), (F) and (G) of SECTION 3.1.1, at the Borrower's
option, exercised in writing to the Administrative Agent at least one
Business Day before such prepayment is to be distributed, such prepayments
pursuant to this SECTION 3.1.2 shall not be applied to any Loan of a
Defaulting Lender, but shall be allocated ratably to the Loans of the
Non-Defaulting Lenders.
(b) Each prepayment of Loans made pursuant to CLAUSES (E), (F) and
(G) of SECTION 3.1.1 shall be applied
(i) FIRST, until all Term A Loans and Term B Loans have been paid in
full, to a mandatory prepayment of the outstanding principal amount of
all Term A Loans and Term B Loans (with the amount of such prepayment
of the Term A Loans and the Term B Loans being applied to the
remaining Term A Loan or Term B Loan, as the case may be, amortization
payments, PRO RATA in accordance with the amount of each such
remaining Term Loan amortization payment), PRO RATA among all such
outstanding Term A Loans and Term B Loans, except that (A) with
respect to the amount of any such prepayment that is allocated to the
then outstanding Term A Loans or Term B Loans, the Borrower will,
prior to prepaying any such Loans, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each Lender
entitled to receive any portion of such prepayment, (B) each such
Lender will have the right to refuse any such prepayment by giving
written notice of such refusal to the Borrower within seven Business
Days after such Lender's receipt of notice from the Administrative
Agent of such prepayment (and the Borrower shall not prepay any such
Term A Loans or Term B Loans until such seventh Business Day or such
time as the Borrower receives written notice from such Lender that it
consents to such prepayment, whichever is earlier), (C) 50% of any
prepayment so refused shall be applied PRO RATA to the remaining Term
A Loans and Term B Loans of Lenders that did not refuse such
prepayment pursuant to SUBCLAUSE (B) above, except that the procedures
set forth in SUBCLAUSES(A) and (B) above shall be followed with
respect to such additional prepayment application and each such
non-refusing Lender shall have the right to refuse such additional
prepayment application, in which case the amount of such additional
prepayment application refused thereby may be retained by the
Borrower, and (D) the remainder of any prepayment so refused may be
retained by the Borrower; PROVIDED, HOWEVER, that any prepayment made
pursuant to CLAUSE (F) of SECTION 3.1.1 may be applied, at the
Borrower's election, to the Term A Loans and/or the Term B Loans in
such proportions as the Borrower may direct (or, in the absence of any
such direction, PRO RATA among Term A Loans and Term B Loans) and to
scheduled and unpaid principal installments of the outstanding
principal of such Term A Loans and Term B Loans PRO RATA in direct
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order of maturities, subject to the exception (and SUBCLAUSES (A) through
(D) thereof) set forth above in this CLAUSE (B)(I) of SECTION 3.1.2; and
(ii) SECOND, once all Term A Loans and Term B Loans have been
repaid in full, all prepayments of Loans made pursuant to CLAUSES (E),
(F) and (G) of SECTION 3.1.1 shall be applied to the repayment of any
outstanding Revolving Loans and a corresponding reduction of the
Revolving Loan Commitment Amount in accordance with SECTION 2.2.2.
(c) INTEREST PERIODS. In lieu of making any payment pursuant to
CLAUSE (E), (F) or (G) of SECTION 3.1.1 in respect of any LIBO Rate
Loan other than on the last day of the Interest Period therefor, so
long as no Default shall have occurred and be continuing, the Borrower
at its option may deposit with the Administrative Agent an amount
equal to the amount of the LIBO Rate Loan to be prepaid and such LIBO
Rate Loan shall be repaid on the last day of the Interest Period
therefor in the required amount (it being understood and agreed that
such LIBO Rate Loan shall not be considered repaid until such last day
of such Interest Period). Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established
on terms reasonably satisfactory to the Administrative Agent, earning
interest (for the account of the Borrower) at the then-customary rate
for accounts of such type. Such deposit shall cash collateralize the
Obligations, PROVIDED that the Borrower may at any time direct that
such deposit be applied to make the applicable payment required
pursuant to SECTION 3.1.1, subject to the provisions of SECTION 4.5.
SECTION III.2. INTEREST PROVISIONS. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
SECTION 3.2.
SECTION III.2.1. RATES. Subject to the first sentence of SECTION 2.3.2
regarding telephonic notice, pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
PLUS the Applicable Margin; PROVIDED that all Swing Line Loans shall always
accrue interest at a rate per annum equal to the higher of (i) the
Alternate Base Rate (for Revolving Loans maintained as Base Rate Loans) and
(ii) the sum of the then effective Alternate Base Rate (for Revolving Loans
maintained as Base Rate Loans) PLUS the Applicable Margin (for Revolving
Loans maintained as Base Rate Loans) MINUS the Applicable Commitment Fee;
and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
for such Interest Period PLUS the Applicable Margin.
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All LIBO Rate Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan.
SECTION III.2.2. POST-MATURITY RATES. After the date any principal
amount of any Loan or Reimbursement Obligation is due and payable (whether on
the Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after
as well as before the entry of judgment thereon) on such amounts at a rate
per annum equal to the Alternate Base Rate from time to time in effect PLUS
the Applicable Margin PLUS a margin of 2%. Anything herein to the contrary
notwithstanding, the obligations of the Borrower to any Lender hereunder
shall be subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder, to the
extent (but only to the extent) that contracting for or receiving such
payment by such Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Lender, and in such
event the Borrower shall pay such Lender interest at the highest rate
permitted by applicable law.
SECTION III.2.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan on the principal amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on each date occurring at three-month intervals after
the first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to SECTION 8.2 or SECTION 8.3, immediately upon
such acceleration.
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Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION III.3. FEES. The Borrower agrees to pay the fees set forth in
this SECTION 3.3. All such fees shall be non-refundable.
SECTION III.3.1. COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period
(including any portion thereof when any of its Commitments are suspended by
reason of the Borrower's inability to satisfy any condition of Article V)
commencing on the Closing Date and continuing through the applicable
Commitment Termination Date, a commitment fee in an amount equal to the
Applicable Commitment Fee, in each case on such Lender's Percentage of the
sum of the average daily unused portion of the applicable Commitment Amount
(net of Letter of Credit Outstandings, in the case of the Revolving Loan
Commitment Amount). All commitment fees payable pursuant to this Section
shall be calculated on a year comprised of 360 days and payable by the
Borrower in arrears on each Quarterly Payment Date, commencing with the first
Quarterly Payment Date following the Closing Date, and on the Revolving Loan
Commitment Termination Date. The making of Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrower to the Lenders.
SECTION III.3.2. ARRANGEMENT AND AGENCY FEES. The Borrower agrees to
pay to the Administrative Agent, for its own account and the account of each
Agent (as the case may be), the fees in the amounts and on the dates set
forth in the Fee Letter.
SECTION III.3.3. LETTER OF CREDIT FEE. The Borrower agrees to pay to
the Administrative Agent, for the PRO RATA account of the Issuer and each
other Lender that has a Revolving Loan Commitment, a Letter of Credit fee in
an amount equal to
(a) with respect to each standby Letter of Credit, a rate per annum
equal to the then Applicable Margin for Revolving Loans maintained as
LIBO Rate Loans, minus 1/8 of 1% per annum, MULTIPLIED BY the Stated
Amount of each such Letter of Credit; and
(b) with respect to each documentary Letter of Credit, 1 and 1/8% per
annum MULTIPLIED BY the Stated Amount of each such Letter of Credit,
such fees being payable quarterly in arrears on each Quarterly Payment Date.
The Borrower further agrees to pay to the Issuer (x) quarterly in arrears
payable on each Quarterly Payment Date, an issuance fee as specified in the
Fee Letter and (y) from time to time promptly after demand, the normal
issuance, presentation, amendment and other processing fees, and other
standard administrative costs and charges of the Issuer relating to Letters
of Credit as from time to time in effect.
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ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION IV.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrower and
the Lenders, be conclusive and binding on the Borrower) that the introduction
of or any change in or in the interpretation of any law makes it unlawful, or
any central bank or other Governmental Authority asserts that it is unlawful,
for such Lender to make, continue or maintain any Loan as, or to convert any
Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue
or maintain or to convert any Loan into, a LIBO Rate Loan shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist, and all outstanding LIBO Rate Loans shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion. Each Lender agrees
to promptly give notice to the Administrative Agent and the Borrower when the
circumstances causing such suspension cease to exist.
SECTION IV.2. DEPOSITS UNAVAILABLE. If the Required Lenders shall have
determined that (a) Dollar deposits in the relevant amount and for the
relevant Interest Period are neither available to such Required Lenders in
the eurodollar market nor available to them in their respective relevant
markets, or (b) by reason of circumstances affecting the eurodollar market,
adequate means do not exist for ascertaining the interest rate applicable
hereunder to LIBO Rate Loans, then, upon notice from the Administrative Agent
to the Borrower and the Lenders, the obligations of all Lenders under SECTION
2.3 and SECTION 2.4 to make or continue any Loans as, or to convert any Loans
into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist. Upon receipt of notice from the
Administrative Agent that the Required Lenders are unable to determine the
LIBO Rate, the Borrower may revoke any Borrowing Request or
Conversion/Continuation Notice then submitted by it. If the Borrower does not
revoke such Borrowing Request or Continuation/Conversion Notice, the Lenders
shall make, convert or continue the Loans, as proposed by the Borrower, in
the amount specified in the applicable notice submitted by the Borrower, but
such Loans shall be made, converted or continued as Base Rate Loans instead
of LIBO Rate Loans.
SECTION IV.3. CHANGE OF CIRCUMSTANCES. If, after the Effective Date,
the introduction of or any change in or in the interpretation of, or any
change in the application of, any law or any regulation (including Regulation
D of the Board) or guideline issued by any central bank or other Governmental
Authority (whether or not having the force of law), or by NAIC or any other
comparable agency charged with the interpretation or administration thereof
or including any reserve or special deposit requirement or any tax (other
than Taxes covered by SECTION 4.6 and taxes on a Lender's general income) or
any capital requirement, has, due to a Lender's
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compliance the effect, directly or indirectly, of (i) increasing the cost to
such Lender of performing its obligations hereunder (including the making,
continuing or maintaining of any Loans as or converting any Loans into, LIBO
Rate Loans); (ii) reducing any amount received or receivable by such Lender
hereunder or its effective return hereunder or on its capital; or (iii)
causing such Lender to make any payment or to forego any return based on any
amount received or receivable by such Lender hereunder, then upon demand of
such Lender to the Borrower through the Administrative Agent, accompanied by
written notice showing in reasonable detail the basis for calculation of any
such amounts, from time to time, the Borrower shall be obligated to pay such
amounts and shall compensate such Lender promptly after receipt of such
notice and demand for any such cost, reduction, payment or foregone return.
Any certificate of a Lender in respect of the foregoing will be conclusive
and binding upon the Borrower, except for clearly demonstrable error.
SECTION IV.4. REPLACEMENT OF LENDER. If (a) the Borrower receives
notice from any Lender requesting increased costs or additional amounts under
SECTION 4.3 or 4.6, (b) any Lender is affected in the manner described in
SECTION 4.1, (c) a Lender becomes a Non-Performing Lender or a Defaulting
Lender or (d) S&P or Moody's, after the date that any Person becomes a Lender
with a Revolving Loan Commitment, downgrades the long-term certificate of
deposit ratings of such Lender, and the resulting rating is below BBB- or
Baa3, respectively, or the equivalent, then
(i) in each case, the Borrower shall have the right, so long as no
Event of Default shall have occurred and be continuing and unless, (x)
in the case of CLAUSE (A) above, such Lender has removed or cured the
conditions which resulted in the obligation to pay such increased
costs or additional amounts or agreed to waive and otherwise forego
any right it may have to any payments provided for under SECTION 4.3
or 4.6 in respect of such conditions or (y) in the case of CLAUSE (D)
above, such Lender's rating is upgraded by S&P or Moody's to a rating
of at least BBB- or Baa3, respectively, or the equivalent, and
(ii) in the case of CLAUSE (D) above, the Swing Line Lender and
the Issuer shall have the right, but not the obligation,
to replace in its entirety such Lender (the "REPLACED LENDER"), upon prior
written notice to the Administrative Agent and such Replaced Lender, with one
or more other Eligible Assignee(s) (collectively, the "REPLACEMENT LENDER")
acceptable to the Administrative Agent and, in the case of CLAUSE (A), (B) or
(D) above and in the event the Replaced Lender is a Lender with a Revolving
Loan Commitment, the Swing Line Lender and the Issuer (which acceptance, in
each case, shall not be unreasonably withheld); PROVIDED, HOWEVER, that, at
the time of any replacement pursuant to this SECTION 4.4, the Replaced Lender
and the Replacement Lender shall enter into (each Replaced Lender hereby
unconditionally agreeing to enter into) one or more Lender Assignment
Agreements (appropriately completed), pursuant to which (A) the Replacement
Lender shall acquire all of the Commitments and outstanding Revolving Loans
and Term Loans of, and
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participations in Swing Line Loans and Letter of Credit Outstandings of, the
Replaced Lender and, in connection therewith, shall pay (x) to the Replaced
Lender in respect thereof an amount equal to the sum of (1) an amount equal
to the principal of, and all accrued but unpaid interest on, all outstanding
Loans of the Replaced Lender and (2) an amount equal to all accrued but
theretofore unpaid fees owing to the Replaced Lender pursuant to SECTION 3.3
and (y) to the Issuer, an amount equal to any portion of the Replaced
Lender's funding of an unpaid drawing under a Letter of Credit as to which
the Replaced Lender is then in default; and (B) the Borrower shall pay to the
Replaced Lender any other amounts payable to the Replaced Lender under this
Agreement (including amounts payable under SECTIONS 3.3.3, 4.1, 4.3, 4.5 and
4.6 which have accrued to the date of such replacement). Upon the execution
of the Lender Assignment Agreement(s), the payment of the amounts referred to
in the preceding sentence and, if so requested by the Replacement Lender in
accordance with CLAUSE (B) of SECTION 10.11.1, delivery to the Replacement
Lender of the applicable Notes executed by the Borrower, the Replacement
Lender shall automatically become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions under this Agreement, which shall survive as to
such Replaced Lender. It is understood and agreed that if any Replaced
Lender shall fail to enter into a Lender Assignment Agreement in accordance
with the foregoing, it shall be deemed to have entered into such a Lender
Assignment Agreement.
SECTION IV.5. FUNDING LOSSES. In the event any Lender shall reasonably
incur any loss or expense (including any loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Lender to make, continue or maintain any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan) as a result of (a) any conversion or repayment or
prepayment of the principal amount of any LIBO Rate Loans on a date other
than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to SECTION 3.1 or otherwise, (b) any Loans not being made as
LIBO Rate Loans in accordance with the Borrowing Request therefor, (c) any
Loans not being made or continued as, or continued into, LIBO Rate Loans as a
result of a withdrawn or revoked Borrowing Request or Continuation/Conversion
Notice or for any other reason (other than a default by any Lender or the
Administrative Agent), or (d) any Loans not being continued as, or converted
into, LIBO Rate Loans in accordance with the Continuation/Conversion Notice
therefor, then, upon the written notice of such Lender to the Borrower (with
a copy to the Administrative Agent), the Borrower shall, promptly after its
receipt thereof, pay to the Administrative Agent for the account of such
Lender such amounts required to compensate such Lender for any additional
losses, costs or expenses that such Lender may reasonably incur as a result
of such payment, failure to convert or failure to continue, including any
loss, cost or expense (excluding loss of anticipated profits) actually
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such LIBO Rate Loan. Such
written notice (which shall set forth in reasonable detail the basis for
requesting such amount and include calculations in reasonable detail in
support thereof) shall, in the absence of clearly demonstrable error, be
conclusive and binding on the Borrower.
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SECTION IV.6. TAXES. (a) Any and all payments by the Borrower to each
Lender and the Administrative Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Borrower shall pay all Other
Taxes to the relevant taxing authority or other authority in accordance with
applicable law.
(b) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this
Section), such Lender or the Administrative Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings; and
(iii) the Borrower shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance with
applicable law and shall as promptly as possible thereafter send to
the Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
receipt (or other written evidence) showing payment thereof.
(c) The Borrower agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of (i) Taxes and (ii) Other
Taxes that are payable by such Lender or the Administrative Agent and any
penalties, interest, additions to tax, expenses or other similar liabilities
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 45 days after the date such Lender or the Administrative
Agent makes written demand therefor.
(d) Each Lender that is not incorporated or organized in or under the
laws of the United States or a state thereof (a "NON-U.S. LENDER") shall:
(i) deliver to the Borrower and the Administrative Agent, prior to
the first day on which the Borrower is required to make any payments
hereunder to such Lender, two copies of either United States Internal
Revenue Service Form 1001 or Form 4224 or, in the case of a Non-U.S.
Lender claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof
or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8, a certificate representing that such Non-U.S. Lender (x) is not a
bank for purposes of Section 881(c) of the Code, is not subject to
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regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any
tax, securities law or other filing or submission made to any
Governmental Agency, any application made to a rating agency or
qualification for any exemption from tax, securities law or other
legal requirements, (y) is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrower and (z)
is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. Federal withholding tax on
payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further
copies of any such form of certification on or before the date that
any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Non-U.S. Lender that
shall become a Participant pursuant to SECTION 10.11.2 or a Lender pursuant
to SECTION 10.11.1 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this
SECTION 4.6(D), PROVIDED that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
(e) The Borrower shall not be required to indemnify any Non-U.S. Lender
or the Administrative Agent, or to pay any additional amounts to such
Non-U.S. Lender or the Administrative Agent, in respect of U.S. Federal
withholding tax pursuant to CLAUSE (A) above to the extent that (i) the
obligation to withhold amounts with respect to U.S. Federal withholding tax
existed on the date such Non-U.S. Lender became a party to this Agreement
(or, in the case of a Non-U.S. Participant, on the date such Participant
became a Participant hereunder) or as of the date such Non-U.S. Lender
changes its applicable lending office; PROVIDED, HOWEVER, that this CLAUSE
(I) shall not apply to the extent that (x) in the case of an assignee Lender
or a Participant or a change in the Lender's applicable lending office, the
indemnity payments or additional amounts any Lender (or Participant) would be
entitled to receive (without regard to this CLAUSE (I)) do not exceed the
indemnity payment or additional amounts that the Person making the
assignment, participation, transfer or change in lending office would have
been entitled to receive in the absence of such assignment, participation,
transfer or change in lending office, or (y) such assignment, participation,
transfer or change in lending office had been requested by the
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Borrower, (ii) the obligation to pay such additional amounts would not have
arisen but for a failure by such Non-U.S. Lender or Non-U.S. Participant to
comply with the provisions of CLAUSE (D) above or (iii) any of the
representations or certifications made by a Non-U.S. Lender or Non-U.S.
Participant pursuant to CLAUSE (D) above are incorrect at the time a payment
hereunder is made, other than by reason of any change in treaty, law or
regulation having effect after the date such representations or
certifications were made.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which indemnification has been demanded
hereunder, the relevant Lender (to the extent such Lender reasonably
determines in good faith that it will not suffer any adverse effect as a
result thereof) or the Administrative Agent, as applicable, shall cooperate
with the Borrower in challenging such Taxes at the Borrower's expense if so
requested by the Borrower in writing. If any Lender or the Administrative
Agent, as applicable, receives a refund of a Tax for which a payment has been
made by the Borrower pursuant to this Agreement, which refund in the good
faith judgment of such Lender or the Administrative Agent, as the case may
be, is attributable by the Borrower, then such Lender or the Administrative
Agent, as the case may be, shall reimburse the Borrower for such amount as
such Lender or the Administrative Agent, as the case may be, determines to be
the proportion of the refund as will leave it, after such reimbursement, in
no better or worse position than it would have been in if the payment had not
been required. Neither the Lenders nor the Administrative Agent shall be
obliged to disclose information regarding its tax affairs or computations to
the Borrower in connection with this CLAUSE (F) or any other provision of
this SECTION 4.6.
(g) Promptly after the date of any payment by the Borrower of Taxes or
Other Taxes, the Borrower shall furnish to each Lender and the Administrative
Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Lender or the
Administrative Agent.
SECTION IV.7. CHANGE OF LENDING OFFICE. Each Lender agrees that, as
promptly as practicable after it becomes aware of the occurrence of an event
or the existence of a condition that would give rise to the operation of
SECTION 4.1, 4.3, 4.6(B) or 4.6(C) with respect to such Lender, it will
exercise commercially reasonable efforts to make, fund or maintain the
affected Loans of such Lender through another lending office and to take such
other actions as it deems appropriate to remove or lessen the impact of such
condition and if, as determined by such Lender in its sole discretion, the
making, funding or maintaining of such affected Loans through such other
lending office or the taking of such other actions would not otherwise
adversely affect such Loans or such Lender and would not, in such Lender's
sole discretion, be commercially unreasonable. Nothing in this SECTION 4.7
shall affect or postpone any of the Obligations of the Borrower or the right
of any Lender provided in SECTION 4.1, 4.3, 4.6(B) or 4.6(C).
SECTION IV.8. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by the
Borrower to the Administrative Agent for the PRO RATA
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account of the Lenders entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without
setoff, deduction or counterclaim, not later than 1:00 p.m., New York City
time, on the date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to time by notice
to the Borrower. Funds received after 2:00 p.m., New York City time, on such
due date shall be deemed to have been received by the Administrative Agent on
the next succeeding Business Day. The Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such payments
received by the Administrative Agent for the account of such Lender. All
computations of interest for LIBO Rate Loans and Base Rate Loans (calculated
at the Federal Funds Rate) shall be made on the basis of a 360-day year and
actual days elapsed. All other computations (including for interest on Base
Rate Loans (calculated at other than the Federal Funds Rate) and fees) shall
be made on the basis of a year or 365 or 366 days, as the case may be, and
actual days elapsed. Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by CLAUSE (C) of the definition of the term "INTEREST PERIOD") be
made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
SECTION IV.9. SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligation
(other than pursuant to the terms of SECTION 4.3, 4.4, 4.5 or 4.6) in excess
of its PRO RATA share of payments then or therewith obtained by all Lenders,
such Lender shall purchase from the other Lenders such participations in
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of
them; PROVIDED, HOWEVER, that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and each Lender which has sold a participation to
the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to a fraction having a numerator of
(a) the amount of such selling Lender's required repayment to the purchasing
Lender and a denominator of (b) total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights
of payment (including pursuant to SECTION 4.10) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under
this Section to share in the benefits of any recovery on such secured claim.
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SECTION IV.10. SETOFF. Each Lender shall, upon the occurrence and during
the continuance of any Default described in CLAUSES (a) through (d) of
SECTION 8.1.9 or, with the consent of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, without
prior notice to the Borrower (any such notice being waived by the Borrower to
the fullest extent permitted by law), have the right to appropriate and apply
to the payment of the Obligations then due and payable to it, any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender; PROVIDED, HOWEVER, that any such
appropriation and application shall be subject to the provisions of SECTION
4.9. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such
Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which
such Lender may have.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION V.1. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. This Credit Agreement shall become effective on the date (the
"EFFECTIVE DATE") when each of the conditions precedent set forth in the
Amendatory Agreement have been satisfied (unless waived by the Lenders or
unless the deadline for delivery has been extended by the Administrative
Agents).
SECTION V.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to SECTIONS 2.1.4 and 2.1.5 and the satisfaction
of each of the conditions precedent set forth in this SECTION 5.2.
SECTION V.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both
before and after giving effect to any Credit Extension:
(a) the representations and warranties set forth in ARTICLE VI and in
each other Loan Document shall, in each case, be true and correct in
all material respects with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION V.2.2. CREDIT EXTENSION REQUEST, ETC. Subject to SECTIONS 2.3.2
and 2.6.2, the Administrative Agent shall have received a Borrowing Request
if Loans are being requested, or
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an Issuance Request if a Letter of Credit is being requested or extended.
Each of the delivery of a Borrowing Request or Issuance Request, the giving
of telephonic notice pursuant to SECTION 2.3.2 and the deemed making of a
request for a Swing Line Loan as set forth in SECTION 2.6.2 and the
acceptance by the Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to
such Credit Extension and the application of the proceeds thereof) the
statements made in SECTION 5.2.1 are true and correct in all material
respects.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and each Agent to enter into
this Agreement and to make Credit Extensions hereunder, the Borrower
represents and warrants unto each Agent, the Issuer and each Lender as set
forth in this ARTICLE VI.
SECTION VI.1. ORGANIZATION, ETC. The Borrower and each of its Material
Restricted Subsidiaries and each other Obligor
(a) is a corporation validly organized and existing and in good
standing under the laws of the state or jurisdiction of its
incorporation;
(b) is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its
business requires such qualification; and
(c) has full power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its
Obligations under this Agreement, the Notes and each other Loan
Document to which it is a party and to own and hold under lease its
property and to conduct its business substantially as currently
conducted by it,
except, in the case of CLAUSES (A) and (C) above, with respect to each
Material Restricted Subsidiary and each other Obligor other than the
Borrower, and, in the case of CLAUSE (B) above, with respect to the Borrower
and each Material Restricted Subsidiary and each other Obligor, to the extent
that the failure of which could not reasonably be expected to have a Material
Adverse Effect.
SECTION VI.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by the Borrower of this Agreement, the
Notes and each other Loan Document executed or to be executed by it, the
execution, delivery and performance by each other Obligor
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of each Loan Document executed or to be executed by it, the granting of the
Liens contemplated by the Pledge Agreement, and the Borrower's, each of its
Material Restricted Subsidiaries' and each other Obligor's participation in
the consummation of all aspects of the transactions contemplated hereby, are
in each case within each such Person's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any material contractual restriction binding on or
affecting any such Person or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under
the terms of any material indenture (including the Senior Subordinated
Indenture), loan agreement, lease agreement, mortgage, deed of trust,
agreement or other material instrument to which the Borrower or any of
the Subsidiaries is a party or by which it or any of its property or
assets is bound;
(c) contravene (i) any court decree or order binding on or affecting
any such Person or (ii) any law or governmental regulation binding on
or affecting any such Person; or
(d) result in, or require the creation or imposition of, any Lien on
any of such Person's material properties (except as permitted by this
Agreement).
SECTION VI.3. GOVERNMENT APPROVAL, REGULATION, ETC. No approval,
consent, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or regulatory body or other Person (other
than those that have been, or on the Effective Date will be, duly obtained or
made and which are, or on the Effective Date will be, in full force and
effect and other than those, singly or in the aggregate, with respect to
which the failure to obtain or make could not reasonably be expected to have
a Material Adverse Effect) is necessary or required for the consummation of
the transactions contemplated hereby or the due execution, delivery or
performance by, or enforcement against, the Borrower or any other Obligor of
this Agreement, the Notes or any other Loan Document to which it is a party
or the granting of the Liens contemplated by the Pledge Agreement. Neither
the Borrower nor any other Obligor nor any of the Restricted Subsidiaries is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
SECTION VI.4. VALIDITY, ETC. This Agreement constitutes, and the Notes
and each other Loan Document, executed by the Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance
with their respective terms; and each other Loan Document executed pursuant
hereto by each other Obligor will, on the due execution and delivery thereof
by such Obligor, constitute the legal, valid and binding obligation of such
Obligor enforceable against such Obligor in accordance with its terms
(except, in any case above, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by principles of equity).
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SECTION VI.5. FINANCIAL INFORMATION. The financial statements furnished
to the Administrative Agent and the Lenders pursuant to CLAUSES (a) and (b)
of SECTION 5.1.5 have been prepared in accordance with GAAP consistently
applied, except as otherwise expressly noted therein, and present fairly in
all material respects the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of
operations, shareholders' equity, earnings and cash flow and all other
financial information of each of the Borrower and its Subsidiaries furnished
pursuant to SECTION 7.1.1 have been and will for periods following the
Effective Date be prepared in accordance with GAAP consistently applied,
except as otherwise expressly noted therein, and do or will present fairly in
all material respects the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION VI.6. NO MATERIAL ADVERSE CHANGE. Except as may have been
disclosed in writing to the Agents and the Lenders prior to the Closing Date,
there has been no Material Adverse Change since October 31, 1996.
SECTION VI.7. LITIGATION, LABOR CONTROVERSIES, ETC.; NO VIOLATION OF
LAW. There is no pending or, to the knowledge of the Borrower, threatened
litigation, action, proceeding, or labor controversy affecting the Borrower
or any of its Material Restricted Subsidiaries, or any of their respective
properties, businesses, assets or revenues, which could reasonably be
expected to have a Material Adverse Effect, except as disclosed in ITEM 6.7
("Litigation") of the Disclosure Schedule.
SECTION VI.8. SUBSIDIARIES. The Borrower has no Subsidiaries, except
those Subsidiaries
(a) existing on the Closing Date which are identified in ITEM 6.8
("Existing Subsidiaries") of the Disclosure Schedule (and each
Material Restricted Subsidiary as of the Closing Date has been so
designated therein);
(b) which are permitted to have been organized or acquired following
the Closing Date in accordance with SECTION 7.2.5 or 7.2.7.
SECTION VI.9. OWNERSHIP OF PROPERTIES. The Borrower and each of its
Material Restricted Subsidiaries has good title to, or leasehold interests
in, all of its properties and assets, real and personal, tangible and
intangible, of any nature whatsoever, free and clear in each case of all
Liens or claims, except for Liens permitted pursuant to SECTION 7.2.3, except
where the failure to have such good title or leasehold interests could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each of the Borrower and its Material Restricted
Subsidiaries owns or are licensed or otherwise have the right to use all of
the trademarks, copyrights, patents, licenses and other rights that are
reasonably necessary for the
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operation of each of their respective businesses, without conflict with the
rights of any other Person and free of burdensome restrictions, except where
the failure to have any such rights could not reasonably be expected to have
a Material Adverse Effect.
SECTION VI.10. TAXES. The Borrower, its Restricted Subsidiaries and all
other corporations with whom the Borrower or any Restricted Subsidiary join
in the filing of a consolidated return have filed all Federal income tax
returns and other material tax returns and reports, domestic and foreign,
required by law to have been filed, and have paid all material taxes,
assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable except those
not yet delinquent or those which are being diligently contested in good
faith. The Borrower, each of its Restricted Subsidiaries and each such other
corporation with whom the Borrower or any Restricted Subsidiary joins in the
filing of a consolidated return have paid, or have provided adequate reserves
(in the good faith judgement of the management of the Borrower) in accordance
with GAAP for the payment of all such material taxes, assessments, fees and
charges relating to all prior taxable years and the current taxable year of
the Borrower, each of its Restricted Subsidiaries and each such other
corporation with whom the Borrower or any Restricted Subsidiary joins in the
filing of a consolidation return. To the best knowledge of the Borrower,
there is no proposed tax assessment against the Borrower or any Restricted
Subsidiary or any such other corporation with whom the Borrower or any
Restricted Subsidiary joins in the filing of a consolidated return that could
reasonably be expected to have a Material Adverse Effect.
SECTION VI.11. ERISA COMPLIANCE. Except as specifically disclosed in
ITEM 6.11 ("Employee Benefit Plans") of the Disclosure Schedule:
(a) Each Plan is in compliance in all material respects with the
terms thereof and the applicable provisions of ERISA, the Code and
other federal or state law except to the extent that failure to comply
would not result, individually or in the aggregate, in an amount of
liability that could reasonably be expected to have a Material Adverse
Effect. The Borrower and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, except
to the extent that a failure to do so could not reasonably be expected
to have a Material Adverse Effect, and no application for a funding
waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Pension Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in an
amount which could reasonably be expected to have a Material Adverse
Effect if such Pension Plan were then terminated;
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and (iii) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA that could reasonably be expected to have a
Material Adverse Effect.
SECTION VI.12. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower and
each of its Restricted Subsidiaries is in compliance with all applicable
Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. Without
limiting the effect of the preceding sentence:
(a) neither the Borrower nor any of its Subsidiaries has
received a complaint, order, citation, notice or other written
communication with respect to the existence or alleged existence
of a violation of, or liability arising under, any Environmental
Law, the outcome of which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect;
(b) to the best of the Borrower's knowledge, after due inquiry, there
are no environmental, health or safety conditions existing or
reasonably expected to exist at any real property owned, operated,
leased or used by the Borrower or any of its existing or former
Subsidiaries or any of their respective predecessors, including
off-site treatment or disposal facilities used by the Borrower or its
existing or former Subsidiaries for wastes treatment or disposal,
which could reasonably be expected to require any construction or
other capital costs or clean-up obligations to be incurred prior to
the Stated Maturity Date for all Term B Loans in order to assure
compliance with any Environmental Law, including provisions regarding
clean-up, to the extent that any of such conditions, construction or
other capital costs or clean-up obligations, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect; and
(c) neither the Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned Real Estate (as defined in SECTION 7.1.8)
or facility relating to its business in a manner that could reasonably
be expected to have a Material Adverse Effect.
SECTION VI.13. REGULATIONS G, U AND X. Neither the Borrower nor any of
its Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock, and no use of any proceeds of
any Credit Extensions will violate F.R.S. Board Regulation G, U or X. Terms
for which meanings are provided in F.R.S. Board Regulation G, U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION VI.14. Accuracy of Information. (a) All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf
of the Borrower or any of its Subsidiaries in writing to any Agent, the
Issuer or any Lender on or before the Closing Date
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(including (i) the Confidential Information Memorandum and (ii) all
information contained in the Loan Documents) for purposes of or in connection
with this Agreement or any transaction contemplated hereby is true and
complete in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time in light of the circumstances under which such information was provided,
it being understood and agreed that for purposes of this CLAUSE (a), such
factual information shall not include projections and pro forma financial
information.
(b) The projections and PRO FORMA financial information contained in the
factual information referred to in CLAUSE (A) above (including the pro forma
consolidated financial statements delivered pursuant to CLAUSE (B) of SECTION
5.1.5) were or are based on good faith estimates and assumptions believed to
be reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may
differ significantly from the projected results.
ARTICLE VII
COVENANTS
SECTION VII.1. AFFIRMATIVE COVENANTS. The Borrower agrees with each
Agent, the Issuer and each Lender that, until all Commitments have
terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, the Borrower will perform
or cause to be performed the obligations set forth in this SECTION 7.1.
SECTION VII.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The
Borrower will furnish, or will cause to be furnished, to each Lender, the
Issuer and each Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
the Borrower, unaudited consolidated and consolidating balance sheets
of the Borrower and its Restricted Subsidiaries and, to the extent
available, unaudited consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries, in each case as of the end of such
Fiscal Quarter and unaudited consolidated and consolidating statements
of earnings and cash flow of the Borrower and its Restricted
Subsidiaries and, to the extent available, unaudited consolidated and
consolidating statements of earnings and cash flow of the Borrower and
its Subsidiaries, in each case for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, certified by the chief financial
Authorized Officer of the Borrower as fairly presenting in all
material respects, in accordance with GAAP (subject to year-end audit
adjustments),
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the financial position and results of operations of the
Borrower and its Subsidiaries covered thereby as of the date thereof;
(b) as soon as available and in any event within 120 days after
the end of each Fiscal Year of the Borrower, a copy of the annual
audited financial statements for such Fiscal Year for the
Borrower and its Restricted Subsidiaries, including therein
consolidated and consolidating balance sheets of the Borrower and
its Restricted Subsidiaries as of the end of such Fiscal Year and
consolidated and consolidating statements of earnings and cash
flow of the Borrower and its Restricted Subsidiaries for such
Fiscal Year, in each case as audited (without any Impermissible
Qualification) by Deloitte & Touche LLC or other nationally
recognized independent public accountants, together in any event
with a certificate of such accounting firm stating that in the
course of its regular audit of the business of the Borrower and
its Restricted Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event
of Default relating to CLAUSE (A), (B) or (C) of SECTION 7.2.4
that has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof;
(c) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
the Borrower and within 120 days after the end of the Fiscal Year of
the Borrower, a Compliance Certificate, executed by the chief
executive, financial or accounting Authorized Officer of the Borrower,
showing (in reasonable detail, including with respect to appropriate
calculations and computations) compliance with the financial covenants
set forth in ARTICLE VII;
(d) promptly after any Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of the occurrence of a
Default or Event of Default (including any "Event of Default" as
defined in the Senior Subordinated Indenture), a statement of the
chief executive, financial or accounting Authorized Officer of the
Borrower setting forth details of such Default or Event of Default and
the action which the Borrower has taken and proposes to take with
respect thereto;
(e) promptly after any Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of (x) the occurrence of
any material adverse development with respect to any litigation,
action, proceeding or labor controversy, or (y) the commencement of
any litigation, action, proceeding or labor controversy, in each case
(in the case of either CLAUSE (X) or (Y) above) to the extent the
same, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, notice thereof;
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(f) promptly after any receipt of any notice of acceleration,
redemption or purchase demands or other similar notices provided by
the trustee for the Senior Subordinated Notes, notice thereof and
copies of all documentation relating thereto;
(g) concurrently with the delivery of the financial statements
referred to in CLAUSES (A) and (B) of SECTION 7.1.1, financial
statements prepared on a PRO FORMA basis assuming each Acquisition
consummated during the Test Period relating to such financial
statements referred to in such CLAUSES (A) and (B) had been
consummated on the first day of such Test Period, together with a
Compliance Certificate executed by the chief executive, financial or
accounting Authorized Officer of the Borrower;
(h) promptly upon filing thereof, copies of any reports filed on
Forms 10-K, 10-Q, and 8-K, effective registration statements
filed on Forms S-1, S-2, S-3 and S-4, and any proxy statements,
as well as any substitute or similar documents to substantially
the same effect as the foregoing, including, to the extent
requested by the Administrative Agent, the schedules and exhibits
thereto, in such each case as filed with the SEC by the Borrower
or any of its Restricted Subsidiaries (other than immaterial
amendments to any such registration statement);
(i) promptly after transmission thereof, copies of any notices of
reports that the Borrower or any of its Subsidiaries shall send to the
holders of any publicly issued debt of the Borrower and/or any of its
Subsidiaries (including the Senior Subordinated Notes) in their
capacity as such holders (in each case to the extent not theretofore
delivered to the Lenders pursuant to this Agreement);
(j) promptly after a Responsible Officer of the Borrower or any of
its Restricted Subsidiaries obtains knowledge of the occurrence of any
ERISA Event (but in no event more than 10 days after a Responsible
Officer of the Borrower obtains knowledge of such ERISA Event), notice
thereof together with a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Borrower or any ERISA Affiliate
with respect to such event;
(k) promptly when available and in any event within 60 Business Days
after the last day of each Fiscal Year of the Borrower (commencing
after the Effective Date), a budget for the then current Fiscal Year
of the Borrower as customarily prepared by the management of the
Borrower for its internal use, which budget shall be prepared on a
Fiscal Quarter basis and shall set forth the principal assumptions on
which such budget is based;
(l) promptly after obtaining knowledge of any one or more of the
following environmental matters, unless such environmental matters
would not, individually or
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when aggregated with all other such matters, be reasonably expected to
result in a Material Adverse Effect, written notice of:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Estate (as defined
below);
(ii) any condition or occurrence on any Real Estate that (x) results
in noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any
of its Subsidiaries or any Real Estate;
(iii) any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to
any restrictions on the ownership, occupancy, use or transferability
of such Real Estate under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's response thereto. The term "REAL ESTATE"
shall mean land, buildings and improvements owned or leased by the
Borrower or any of its Subsidiaries, but excluding all operating
fixtures and equipment, whether or not incorporated into improvements;
and
(m) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as
any Agent, or the Required Lenders through the Administrative Agent,
may from time to time reasonably request in writing.
SECTION VII.1.2. PRESERVATION OF CORPORATE EXISTENCE, ETC. The
Borrower will, and will cause each of its Restricted Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence under the laws of its state or jurisdiction of incorporation
(PROVIDED that the Borrower and its Restricted Subsidiaries may
consummate any transaction permitted under SECTION 7.2.7), except, in
the case of any such Restricted Subsidiary, to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect; and
(b) preserve and maintain in full force and effect its good standing
under the laws of its state or jurisdiction of incorporation and all
material governmental rights, privileges, qualification, permits,
licenses and franchises necessary in the normal conduct
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of its business except in each case to the extent that the failure
to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION VII.1.3. MAINTENANCE OF PROPERTIES. The Borrower will, and
will cause each of its Restricted Subsidiaries to, ensure that its properties
and equipment used or useful in its business, in whomsoever's possession they
may be to the extent that it is within the Borrower's or such Restricted
Subsidiary's control to cause same, are kept in good repair, working order
and condition, normal wear and tear excepted, and that from time to time
there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner customary for companies
in similar businesses and consistent with third-party leases, except in each
case to the extent the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION VII.1.4. PAYMENT OF TAXES. The Borrower will, and will cause each
of its Subsidiaries to, pay and discharge all material taxes, assessments and
governmental charges or levies upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful material claims that, if unpaid, could
reasonably be expected to become a material Lien upon any properties of the
Borrower or any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that
neither the Borrower nor any of its Subsidiaries shall be required hereunder
to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith if it has maintained adequate reserves (in the good
faith judgment of the management of the Borrower or such Subsidiary) with
respect thereto in accordance with GAAP.
SECTION VII.1.5. COMPLIANCE WITH STATUTES, ETC. The Borrower will, and
will cause each of its Subsidiaries to comply, in all material respects, with
all applicable statutes, regulations and other Requirements of Law (including
Environmental Laws) having jurisdiction over it or its business, except such
as may be contested in good faith or as to which a bona fide dispute may
exist or except to the extent that the failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
SECTION VII.1.6. INSURANCE. The Borrower shall, and shall cause each
of its Restricted Subsidiaries to, at all times maintain in full force and
effect, with insurance companies which the Borrower believes (in the good
faith judgment of the management of the Borrower) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance
with respect to its properties and business (including business interruption
and hurricane insurance) against such casualties and contingencies and of
such types and in such amounts, and with such deductibles, retentions,
self-insured amounts and reinsurance provisions, as are customarily
maintained by companies engaged in the same or similar businesses in the same
general area and will, upon request of any of the Administrative Agent,
furnish to each Lender information presented in reasonable detail as to the
insurance maintained by the Borrower and its Restricted Subsidiaries.
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SECTION VII.1.7. INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The
Borrower will, and will cause each of its Restricted Subsidiaries to, permit
officers and designated representatives of the Agents or the Required
Lenders, at reasonable times and intervals, to visit and inspect any of its
properties or its assets, to discuss its financial matters with its officers
and independent public accountant and to examine (and, at the expense of the
Borrower, photocopy extracts from) any of its books or other corporate
records. The Borrower shall pay any fees of such independent public
accountant incurred in connection with such Agent's or any Lender's exercise
of its rights pursuant to this Section.
SECTION VII.1.8. GUARANTY BY EACH OF THE FAIRWAYS GROUP, L.P. AND ITS
SUBSIDIARIES. The Administrative Agent shall have received, no later than
August 31, 1998, with counterparts for each Lender, supplements to the
Guaranty duly executed and delivered by each of The Fairways Group, L.P. and
its Subsidiaries for the purposes of The Fairways Group, L.P. and such
Subsidiaries becoming guarantors thereunder.
SECTION VII.1.9. FUTURE SUBSIDIARIES. Upon any Person becoming, after
the Effective Date, a Subsidiary of the Borrower (other than any Unrestricted
Subsidiary), including any Person that was a Restricted Subsidiary, but not a
Material Restricted Subsidiary, but which becomes a Material Restricted
Subsidiary through internal growth or otherwise, or upon the Borrower
acquiring additional Capital Stock of any existing Restricted Subsidiary, the
Capital Stock of which is then pledged under the Pledge Agreement, the
Borrower shall notify the Agents of such acquisition, and, unless otherwise
agreed to among the Borrower, the Agents and the Required Lenders, and
subject to the provisions of CLAUSES (g)(iii) and (k)(ii) of SECTION 7.2.2
and CLAUSE(i)(ii) of SECTION 7.2.5,
(a) such Person shall, if it is a Domestic Subsidiary and not
theretofore a party to the Guaranty, execute and deliver to the
Administrative Agent a supplement to the Guaranty for the purposes of
becoming a guarantor thereunder; and
(b) the Borrower shall, if such Person is a direct Subsidiary of the
Borrower, pursuant to the Pledge Agreement, pledge to the
Administrative Agent all of the outstanding shares of Capital Stock of
such Subsidiary owned directly by it (PROVIDED that, in the event such
Subsidiary is a Foreign Subsidiary, the Borrower shall not be required
to pledge more than 65% of the outstanding shares of the Capital Stock
of such Subsidiary), along with undated stock powers for such
certificates, executed in blank (or, if any such shares of capital
stock are uncertificated, confirmation and evidence satisfactory to
the Agents that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative
Agent, for the benefit of the Lenders, the Agents and the Issuer, in
accordance with Section 8-313 and Section 8-321 of the U.C.C. or any
other similar law which may be applicable).
SECTION VII.1.10. USE OF PROCEEDS. The Borrower shall apply the proceeds
of the Credit Extensions
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(a) for working capital and general corporate purposes of the
Borrower and its Restricted Subsidiaries, including Permitted
Acquisitions by such Persons; and
(b) to repay the Indebtedness identified in ITEM 7.2.2(b)
("Indebtedness to be Paid") of the Disclosure Schedule.
SECTION VII.1.11. TRANSACTIONS WITH AFFILIATES. The Borrower shall,
and shall cause each of its Restricted Subsidiaries to, conduct all
transactions with any of its Affiliates (other than the Borrower and its
Restricted Subsidiaries) upon terms that are substantially as favorable to
the Borrower or such Restricted Subsidiary as it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Borrower or
such Restricted Subsidiary; provided that the foregoing restrictions shall
not apply to (a) the payment of customary annual fees to KKR and its
Affiliates for management, consulting and financial services rendered to the
Borrower and its Restricted Subsidiaries, and customary investment banking
fees paid to KKR and its Affiliates for services rendered to the Borrower or
its Restricted Subsidiaries in connection with divestitures, acquisitions,
financings and other transactions, (b) customary fees paid to members of the
Board of Directors of the Borrower and its Restricted Subsidiaries and (c)
the performance of the management agreements entered into with KSL identified
in ITEM 7.1.11 ("MANAGEMENT AGREEMENTS WITH KSL") of the Disclosure Schedule.
SECTION VII.1.12. BUSINESS ACTIVITIES. The Borrower will, and will
cause each of its Restricted Subsidiaries to, engage primarily in the
business of owning, operating and developing country club, resort and spa
properties and assets and hospitality services activities related thereto and
such other activities as are reasonably related, incidental or substantially
similar thereto.
SECTION VII.1.13. END OF FISCAL YEAR. The Borrower will, for financial
reporting purposes, cause each of its, and each of its Domestic
Subsidiaries', fiscal years to end on October 31 of each year (the "Fiscal
Year End"); PROVIDED, HOWEVER, that the Borrower may, upon prior written
notice to the Agents, change the definition of Fiscal Year End set forth
above to any other date reasonably acceptable to the Agents, in which case
the Borrower and the Agents will, and are hereby authorized by the Lenders
to, make any adjustments to this Agreement that are necessary in order to
reflect such change in financial reporting.
SECTION VII.2. NEGATIVE COVENANTS. The Borrower agrees with each
Agent, the Issuer and each Lender that, until all Commitments have
terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, the Borrower will perform
the obligations set forth in this SECTION 7.2.
SECTION VII.2.1. MODIFICATION OF CERTAIN AGREEMENTS. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, consent to or
permit or suffer to exist any amendment, supplement or other modification of,
the Senior Subordinated Notes or the Senior
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Subordinated Indenture or any document or instrument evidencing or applicable
to the Subordinated Debt issued thereunder in a manner materially adverse to
the Lenders.
SECTION VII.2.2. INDEBTEDNESS. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations (including Hedging Obligations in respect of such Credit
Extensions);
(b) until the date of the initial Credit Extension, Indebtedness
identified in ITEM 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in ITEM 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) unsecured Indebtedness incurred in the ordinary course of
business of the Borrower and its Restricted Subsidiaries (consisting
of open accounts extended by suppliers on normal trade terms in
connection with purchases of goods and services and Indebtedness in
respect of performance, surety or appeal bonds provided in the
ordinary course of business, but excluding Indebtedness incurred
through the borrowing of money or Contingent Obligations in respect
thereof);
(e) Indebtedness in respect of Capitalized Lease Liabilities;
PROVIDED, that the aggregate amount of all Indebtedness
outstanding pursuant to this clause at the time any of the same
is created, assumed or incurred (together with the principal
amount of all other Indebtedness permitted under this CLAUSE (e))
shall not at any time exceed $125,000,000 at such time after
giving effect thereto;
(f) Indebtedness between the Borrower and its Restricted Subsidiaries
and Indebtedness between Restricted Subsidiaries;
(g) Indebtedness of a Person existing at the time such Person became
a Restricted Subsidiary of the Borrower to the extent such
Indebtedness constitutes mortgage financing or other real property
financing or, when incurred by such Person, would have constituted
Indebtedness of the type described in CLAUSE (i) below, in each case
after the Closing Date as the result of a Permitted Acquisition,
PROVIDED that (i) such Indebtedness existed at the time such Person
became a Restricted Subsidiary or at the time such assets were
acquired and, in each case, was not created in anticipation thereof,
(ii) such Indebtedness is not guaranteed in any respect by the
Borrower or any Restricted Subsidiary (other than any such Person that
so becomes a Restricted Subsidiary), (iii) (A) the Borrower pledges
the Capital Stock of such Person to the Administrative Agent to the
extent required under SECTION 7.1.9, (B) such Person executes a
supplement to the Guaranty to the extent required under SECTION 7.1.9
and (C) if any such
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Indebtedness is secured, (1) the Guaranty referred to in the
preceding SUBCLAUSE (B) is equally and ratably secured or
(2) in the case of assets acquired by the Borrower or any Restricted
Subsidiary, the Borrower's obligations hereunder or such Restricted
Subsidiary's Guaranty, as the case may be, are equally and ratably
secured, PROVIDED that the requirements of this SUBCLAUSE (III) shall
not apply to a portion thereof in an aggregate amount at any time
outstanding of up to (and including), but not in excess of,
$25,000,000 of the aggregate of (1) all such Indebtedness described
above in this CLAUSE (G) and (2) all Indebtedness as to which the
proviso to CLAUSE (K)(II) of this SECTION 7.2.2 then applies, and
(iv) the aggregate amount of all such Indebtedness described above in
this CLAUSE (G) together with the Increased Commitment Amount and all
Indebtedness incurred under CLAUSE (K) below of this SECTION 7.2.2,
when taken together, may not exceed $200,000,000 in the aggregate at
any time outstanding;
(h) unsecured Subordinated Debt of the Borrower evidenced by the
Senior Subordinated Notes in an aggregate principal amount not to
exceed $125,000,000;
(i) Indebtedness in an aggregate outstanding amount not to
exceed $25,000,000 at any time incurred within 270 days of the
acquisition, construction or improvement of fixed or capital
assets to finance the acquisition, construction or improvement of
such fixed or capital assets or otherwise incurred in respect of
capital expenditures of the Borrower and its Restricted
Subsidiaries to the extent (but only to the extent) such
Indebtedness is secured solely by (and recourse in respect of
such Indebtedness is limited to) such fixed or capital assets and
is non-recourse to the Borrower and each of its Restricted
Subsidiaries;
(j) Indebtedness in respect of Hedging Obligations incurred in the
ordinary course of business and not for speculative purposes (as
determined in good faith by the Borrower);
(k) Indebtedness of the Borrower or any Restricted Subsidiary,
PROVIDED, that (x) if such Indebtedness is incurred to finance a
Permitted Acquisition, (i) such Indebtedness is not guaranteed in any
respect by any Restricted Subsidiary (other than any Person acquired
(the "ACQUIRED PERSON") as a result of such Permitted Acquisition or
the Restricted Subsidiary so incurring such Indebtedness) or, in the
case of Indebtedness of any Restricted Subsidiary, by the Borrower and
(ii) (A) the Borrower pledges the Capital Stock of such acquired
Person to the Administrative Agent to the extent required under
SECTION 7.1.9, (B) such acquired Person executes a supplement to the
Guaranty to the extent required under SECTION 7.1.9 and (C) if a
guaranty by such acquired Person of any such Indebtedness is secured
by assets of such acquired Person, the Guaranty referred to in the
preceding SUBCLAUSE (B) is equally and ratably secured, PROVIDED that
the requirements of this SUBCLAUSE (II) shall not apply to a portion
thereof in an aggregate amount at any time outstanding of up to (and
including), but not in excess of, $25,000,000 of the aggregate of
(1) all such Indebtedness described above in this CLAUSE
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(K) and (2) all Indebtedness as to which the proviso to CLAUSE
(G)(III) of this SECTION 7.2.2 then applies, and (y) the
aggregate amount of all such Indebtedness described above in this
CLAUSE (K) together with the Increased Commitment Amount and all
Indebtedness assumed or permitted to exist under CLAUSE (G) of
this SECTION 7.2.2, when taken together, may not exceed
$200,000,000 in the aggregate at any time outstanding; and
(l) any refinancing, refunding, renewal or extension of any
Indebtedness permitted under CLAUSES (C) through (K) above; PROVIDED
that (i) the principal amount thereof is not increased above the
principal amount thereof outstanding immediately prior to such
refinancing, refunding, renewal or extension (except to the extent
otherwise permitted under this SECTION 7.2.2) and (ii) the direct and
contingent obligors with respect to such Indebtedness are not changed
unless permitted under the applicable provisions hereof.
SECTION VII.2.3. LIENS. The Borrower will not, and will not permit any
of its restricted subsidiaries to, create, incur, assume or suffer to exist
any lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document or any Rate Protection Agreement;
(b) until the date of the initial Credit Extension, liens securing
payment of Indebtedness of the type permitted and described in CLAUSE
(B) of SECTION 7.2.2;
(c) Liens existing as of the Effective Date securing Indebtedness of
the type permitted and described in CLAUSE (C) of SECTION 7.2.2;
(d) Liens securing
(i) payment of foreign currency exchange or rate swap and similar
agreements referred to in CLAUSE (A) of SECTION 7.2.2, in each case to
the extent the counterparty to any such agreement is (or at the time
such agreement was entered into, was) a Lender or an Affiliate of a
Lender; and
(ii) Indebtedness of the type permitted and described in CLAUSE (E)
of SECTION 7.2.2 (and securing only the assets that are the subject of
such Capitalized Lease Liabilities);
and renewals, extensions and refinancing of such Indebtedness;
PROVIDED, that the Liens permitted by this clause with respect to
CLAUSE (E) of SECTION 7.2.2 shall only cover the same assets (or
substitutions or replacements of the same general type) which
originally secured the Indebtedness renewed, extended or refinanced
pursuant to such clause;
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(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without
penalty or to the extent payment is not required pursuant to SECTION
7.1.4;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords and other similar Liens imposed by law incurred in the
ordinary course of business, in each case so long as such Liens do not
individually or in the aggregate have a Material Adverse Effect;
(g) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workmen's
compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
and regulatory obligations, bids, leases and contracts or other
similar obligations (other than for borrowed money) entered into in
the ordinary course of business or to secure obligations on surety or
appeal bonds or performance or return-of-money bonds;
(h) Liens consisting of judgement or judicial attachment liens in
circumstances not constituting an Event of Default under SECTION
8.1.6;
(i) easements, rights-of-way, municipal and zoning ordinances or
similar restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of the Borrower or
its Restricted Subsidiaries;
(j) Liens on the property of, or securing Indebtedness to the
extent permitted by CLAUSE (G) of SECTION 7.2.2 of, any Person
which becomes a Restricted Subsidiary after the date hereof;
PROVIDED that such Liens exist at the time such Person becomes a
Restricted Subsidiary and are not created in anticipation thereof
and such Liens attach only to a specific asset or type of asset
of such Person and not assets of such Person generally;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banks' liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution, PROVIDED that such deposit
account is not a cash collateral account;
(l) any interest or title of a lessor secured by a lessor's interest
under any lease permitted by this Agreement, or any leases or
subleases granted to others not interfering in any material respect
with the business of the Borrower or its Restricted Subsidiary to
which the property subject to such lease or sublease relates;
(m) Liens placed upon property, plant or equipment used in the
ordinary course of business of the Borrower or any of its Restricted
Subsidiaries in connection with the
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acquisition thereof by the Borrower or any such Restricted
Subsidiary to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof (PROVIDED that (i) the Lien
encumbering the property, plant or equipment so acquired does not
encumber any other asset of the Borrower or any such Restricted
Subsidiary and (ii) the Indebtedness secured thereby is permitted
by CLAUSE (K) of SECTION 7.2.2 and such acquisition was otherwise
permitted by this Agreement);
(n) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary, or existing on assets acquired, pursuant
to a Permitted Acquisition under CLAUSE (I) of SECTION 7.2.5 to
the extent the Liens on such assets secure Indebtedness permitted
by CLAUSE (G) of SECTION 7.2.2, PROVIDED that such Liens attach
at all times only to the same assets that such Liens attached to,
and secure only the same Indebtedness that such Liens secured,
immediately prior to such Permitted Acquisition;
(o) Liens placed upon the Capital Stock or assets of any
Restricted Subsidiary acquired pursuant to a Permitted
Acquisition under CLAUSE (I) of SECTION 7.2.5 to the extent such
Liens secure Indebtedness incurred pursuant to CLAUSE (K) of
SECTION 7.2.2 to finance the Acquisition of such Restricted
Subsidiary by the Borrower or any of its other Restricted
Subsidiaries;
(p) Liens securing additional Indebtedness in an aggregate
outstanding amount not to exceed $5,000,000 at any time; and
(q) the replacement, extension or renewal of any Lien permitted by
CLAUSES (C) through (P) above upon or in the same assets theretofore
subject to such Lien (or substitution or replacement assets of the
same general type) or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor
except to the extent otherwise permitted under this Agreement) of the
Indebtedness secured thereby.
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SECTION VII.2.4. FINANCIAL CONDITION AND OPERATIONS. The Borrower will
not permit to occur any of the events set forth below.
(a) INTEREST COVERAGE RATIO. The Borrower will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
INTEREST COVERAGE
PERIOD RATIO
------ -----------------
04/30/1997 through
10/31/1997 1.50:1
01/31/1998 through
10/31/1998 1.75:1
01/31/1999 through
10/31/1999 2.00:1
01/31/2000 through
10/31/2000 2.25:1
01/31/2001 through
the Stated Maturity Date
with respect to Term B Loans 2.50:1.
(b) FIXED CHARGE COVERAGE RATIO. The Borrower will not permit
the Fixed Charge Coverage Ratio as of the end of any Fiscal
Quarter during any Fiscal Year (commencing with the Fiscal
Quarter ending October 31, 1997) to be less than 1.05:1.
(c) MAXIMUM LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio as of the end of any Fiscal Quarter ending on or about
any date set forth below or occurring during any period set forth
below to be greater than the ratio set forth opposite such date or
such period, as applicable:
MAXIMUM LEVERAGE
DATE/PERIOD RATIO
----------- ----------------
10/31/1997 6.75:1
01/31/1998 through 07/31/1998 6.50:1
10/31/1998 6.25:1
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MAXIMUM LEVERAGE
DATE/PERIOD RATIO
----------- ----------------
01/31/1999 through 10/31/1999 6.00:1
01/31/2000 through
10/31/2001 5.50:1
01/31/2002 through
the Stated Maturity Date
with respect to Term B Loans 4.50:1.
SECTION VII.2.5. INVESTMENTS. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, make, incur, assume or suffer to exist
any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments to the extent permitted as
Indebtedness pursuant to SECTION 7.2.2;
(d) without duplication, Capital Expenditures;
(e) without duplication, Investments permitted by SECTION 7.2.6;
(f) Investments by way of contributions to capital or purchases of
equity by the Borrower in any of its Restricted Subsidiaries or by
such Restricted Subsidiary in any of its Restricted Subsidiaries;
(g) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted, or (iii) deposits made in connection
with the purchase price of goods or services, in each case in the
ordinary course of business;
(h) Investments constituting loans and advances to officers,
directors and employees of the Borrower or any of the Restricted
Subsidiaries (i) to finance the purchase of Capital Stock of the
Borrower and (ii) for additional purposes not contemplated by CLAUSE
(I) above, in an aggregate principal amount at any time outstanding
with respect to this CLAUSE (II) not exceeding $5,000,000;
(i) Investments by the Borrower or any Restricted Subsidiary (other
than any Investment in an Unrestricted Subsidiary) constituting an
Acquisition (any such
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Acquisition permitted pursuant to this CLAUSE (I), a "PERMITTED
ACQUISITION"), so long as (i) such Acquisition and all transactions
related thereto are consummated in accordance with applicable
law, (ii) in the case of an Acquisition of Capital Stock or
other equity interest by the Borrower or a Restricted Subsidiary,
(A) such Acquisition results in the issuer of such Capital Stock or
other equity interest becoming a Restricted Subsidiary, (B) the
Borrower pledges the Capital Stock of such Person to the
Administrative Agent to the extent required under SECTION 7.1.9 and
(C) such Person executes a supplement to the Guaranty to the extent
required under SECTION 7.1.9, PROVIDED that the requirements of
SUBCLAUSES (B) and (C) of this SUBCLAUSE (II) shall not apply to an
aggregate amount at any time outstanding of up to (and including), but
not in excess of, $25,000,000 of Indebtedness permitted under CLAUSES
(G) and (K) of SECTION 7.2.2 to be incurred in connection with such
Acquisition, (iii) no Capital Stock or other equity interest or assets
acquired in connection with such Acquisition shall be subject to any
Lien (other than Liens permitted by SECTION 7.2.3), (iv) neither the
Borrower nor any other Restricted Subsidiary shall assume or incur,
directly or indirectly, any Indebtedness in connection with such
Acquisition (other than Indebtedness otherwise permitted by
SECTION 7.2.2), (v) after giving effect to such Acquisition, no
Default shall have occurred and be continuing and (vi) the Borrower
shall have delivered to the Administrative Agent prior to the
consummation of such Acquisition (A) financial statements or
reconciliations prepared on a PRO FORMA basis for the period of four
consecutive Fiscal Quarters ending with the Fiscal Quarter then last
ended for which financial statements and the Compliance Certificate
relating thereto have been delivered to the Administrative Agent
pursuant to SECTION 7.1.1 (assuming, for purposes of such PRO FORMA
calculation, that such Acquisition had been consummated on the first
day of such period) and (B) a certificate of the Borrower executed by
its chief financial Authorized Officer demonstrating that the
financial results reflected in such financial statements would comply
with the requirements of SECTION 7.2.4 for the Fiscal Quarter in which
such Investment is to be made (PROVIDED, that for purposes of this
CLAUSE (I)(VI), and notwithstanding anything in CLAUSE (C) of SECTION
7.2.4 to the contrary, with respect to Investments made in Fiscal
Quarters ended prior to October 31, 1997, the requirements of CLAUSE
(C) of SECTION 7.2.4 shall apply and be deemed to specify a "Maximum
Leverage Ratio" not to exceed 6.75:1); and
(j) additional Investments by the Borrower or its Restricted
Subsidiaries (including in Unrestricted Subsidiaries); PROVIDED,
that at any time that the Leverage Ratio as of the last day of
the most recently ended Fiscal Quarter is greater than 3.5:1.0,
additional Investments may not be made pursuant to this CLAUSE
(J) if, after giving effect thereto, the aggregate amount of all
Investments made pursuant to this CLAUSE (J) at such time would
exceed the sum of (i) $50,000,000 and (ii) the Available Amount
at such time (to the extent not utilized prior to such time); and
(k) any Investment constituting the Corporate Sale Transaction;
PROVIDED, HOWEVER, that
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(l) any Investment which when made complies with the requirements of
CLAUSE (A), (B) or (C) of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
(m) no Investment otherwise permitted by CLAUSE (I), (J) or (K) shall
be permitted to be made if any Event of Default or payment Default has
occurred and is continuing or would result therefrom.
SECTION VII.2.6. RESTRICTED PAYMENTS, ETC. The Borrower shall not
declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares
of any class of its Capital Stock, purchase, redeem or otherwise acquire for
value any shares of its Capital Stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding, or pay, prepay, purchase,
redeem or defease principal of the Senior Subordinated Notes or make any
payments pursuant to any tax sharing arrangements or agreements, and the
Borrower shall not permit any Restricted Subsidiary to purchase, redeem or
otherwise acquire for value any shares of any class of Capital Stock of the
Borrower, now or hereafter outstanding (or any warrants, rights or options to
acquire such shares), and the Borrower shall not permit any of its Restricted
Subsidiaries to pay, prepay, purchase, redeem or defease principal of the
Senior Subordinated Notes or to make any payments pursuant to any tax sharing
arrangement or agreement, except that, so long as (except in the case of
CLAUSE (E) below) before and after giving effect to any such payment no
Default shall have occurred, the Borrower may:
(a) declare and make dividends or other distributions payable solely
in shares of its Capital Stock;
(b) purchase, redeem or otherwise acquire shares of common stock of
the Borrower or warrants or options to acquire any such shares with
the proceeds received from the substantially concurrent issuance of
new shares of common stock of the Borrower;
(c) redeem or exchange in whole or in part any Capital Stock of
the Borrower for another class of Capital Stock or rights to
acquire such other class of Capital Stock of the Borrower,
PROVIDED that such other class of Capital Stock contains terms
and provisions (taken as a whole) at least as advantageous to the
Lenders as those contained in the Capital Stock redeemed or
exchanged thereby;
(d) repurchase shares of its Capital Stock (together with options or
warrants in respect of any thereof) held by the officers, directors
and employees of the Borrower, so long as such repurchase is pursuant
to, and in accordance with the terms of, management and/or employee
stock plans, stock subscription agreements or shareholder agreements;
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(e) (i) pay dividends to KSL in amounts necessary to pay
administrative, legal, accounting and other fees, costs and expenses
directly related to the ownership of the Borrower or the conduct of
its operations and (ii) make, and may permit its Restricted
Subsidiaries to make, payments to (x) the Borrower or any Restricted
Subsidiary pursuant to a tax sharing agreement and (y) KSL pursuant to
a tax sharing agreement in respect of the actual consolidated or
combined tax liability of KSL and its Subsidiaries to the extent such
tax payments are attributable to the tax liability of the Borrower and
its Subsidiaries determined as if the Borrower and its Subsidiaries
were an affiliated group of companies filing a consolidated or, as
applicable, combined return, PROVIDED that, the Borrower and its
Subsidiaries shall not make any portion of any such tax payment to the
extent corresponding to any portion of such tax liability of the
Borrower and its Subsidiaries attributable to any tax liability of an
Unrestricted Subsidiary (determined as if Unrestricted Subsidiaries
were to file returns on a separate reporting basis), unless the
Borrower or its Restricted Subsidiaries shall have received
contribution to the extent of each such Unrestricted Subsidiary's
liability (as adjusted in good faith in a manner not materially
adverse to the Lenders) from the Unrestricted Subsidiaries;
(f) make a dividend or distribution constituting the Corporate Sale
Transaction;
(g) redeem, defease or otherwise prepay or retire the Senior
Subordinated Notes in an aggregate amount not to exceed at any time
the Available Amount at such time (to the extent not utilized prior to
such time);
(h) at any time after the Closing Date, pay cash dividends not
otherwise permitted hereunder so long as the aggregate amount so paid
under this CLAUSE (H) during the term of this Agreement does not
exceed an amount equal to the sum of (i) $15,000,000 and (ii) 50% of
Consolidated Net Income for the period (taken as one accounting
period) from the Closing Date through the last day of the most
recently ended Fiscal Quarter; and
(i) make dividends or distributions consisting of one or more
Specified Real Properties to the extent (and only to the extent)
that immediately prior to any such dividend or distribution of
any Specified Real Property, the use of such Specified Real
Property shall be substantially similar to the use of such
Specified Real Property by the Borrower and/or its Restricted
Subsidiaries on the Closing Date.
SECTION VII.2.7. CONSOLIDATIONS AND MERGERS; SALES OF ASSETS. The
Borrower shall not, and shall not suffer or permit any of its Restricted
Subsidiaries to, merge, consolidate or otherwise combine or liquidate with or
into, or enter into or consummate any Disposition (other than any Disposition
resulting from a casualty or condemnation), whether in one transaction or in
a series of transactions to or in favor of, any Person, except:
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(a) (i) any Restricted Subsidiary may merge or otherwise consolidate
with the Borrower (PROVIDED that the Borrower shall be the continuing
or surviving corporation) and (ii) any Restricted Subsidiary may merge
or otherwise consolidate with any other Restricted Subsidiary;
(b) any Restricted Subsidiary may sell or otherwise transfer its
assets (upon voluntary liquidation or otherwise) to the Borrower and
the Borrower or any Restricted Subsidiary may sell or otherwise
transfer its assets (in the case of any such Restricted Subsidiary,
upon voluntary liquidation or otherwise) to any Restricted Subsidiary;
(c) the Borrower or any Restricted Subsidiary may consummate the
Corporate Sale Transaction; and
(d) the Borrower or any Restricted Subsidiary may consummate one or
more Dispositions (in addition to any thereof described in any other
provision of this SECTION 7.2.7), PROVIDED that (i) the Borrower
complies with the requirements of CLAUSE (E) of SECTION 3.1.1, (ii)
such Disposition is made for fair value (as determined in good faith
by the Borrower) and (iii) the aggregate consideration received for
all assets disposed of in Dispositions from and after the Closing Date
pursuant to this CLAUSE (D) shall not exceed $125,000,000.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. LISTING OF EVENTS OF DEFAULT. Each of the following
events or occurrences described in this SECTION 8.1 shall constitute an "EVENT
OF DEFAULT".
SECTION VIII.1.1. NON-PAYMENT OF OBLIGATIONS. The Borrower shall default
in the payment or prepayment when due of
(a) any principal of any Loan; or
(b) of any interest on any Loan, any Reimbursement Obligation,
any fee described in ARTICLE III or of any other amount payable
hereunder or under any other Loan Document and such default shall
continue unremedied for a period of five days.
SECTION VIII.1.2. BREACH OF WARRANTY. Any representation or warranty
of the Borrower or any other Obligor made or deemed to be made hereunder or
in any other Loan Document executed by it or any other writing or certificate
furnished by or on behalf of the Borrower or any other Obligor to any Agent,
the Issuer or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates
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delivered pursuant to ARTICLE V), is or shall be incorrect when made or
deemed to have been made in any material respect.
SECTION VIII.1.3. Non-Performance of certain covenants and obligations.
The Borrower shall default in the due performance and observance of any of
its obligations under CLAUSE (d) or (f) of SECTION 7.1.1, SECTION 7.1.8 or
SECTION 7.2 or Section 8 of the Pledge Agreement.
SECTION VIII.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS.
The Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan
Document executed by it, and such default shall continue unremedied for a
period of 30 days after written notice thereof shall have been given to the
Borrower or such other Obligor, as applicable, by the Administrative Agent or
the Required Lenders.
SECTION VIII.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in SECTION 8.1.1) of the Borrower or any of its Restricted
Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $10,000,000, or a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness
(subject to any applicable grace period) if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall
continue unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause or declare such Indebtedness to become due and payable or
to require such Indebtedness to be prepaid, redeemed, purchased or defeased,
or to cause an offer to purchase or defease such Indebtedness to be required
to be made, prior to its expressed maturity.
SECTION VIII.1.6. JUDGMENTS. Any judgment, order, decree or
arbitration award for the payment of money in excess of $10,000,000 (to the
extent not fully covered by insurance (less any applicable deductible) or
indemnification and as to which the insurer or the indemnifying party, as the
case may be, has not disputed in writing its responsibility to cover such
judgment, order, decree or arbitration award) shall be rendered against the
Borrower or any of its Restricted Subsidiaries and the same shall not have
been satisfied or vacated or discharged or stayed or bonded pending appeal
within 60 days after the entry thereof.
SECTION VIII.1.7. ERISA. An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan.
SECTION VIII.1.8. CONTROL OF THE BORROWER. Any Change of Control shall
occur.
SECTION VIII.1.9. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of
its Material Restricted Subsidiaries shall
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(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness generally to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial
part of the property of any thereof, or make a general assignment for
the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for a substantial part of the property
of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect thereof, and, if any such case or
proceeding is not commenced by the Borrower or any such Subsidiary,
such case or proceeding shall be consented to or acquiesced in by the
Borrower or such Subsidiary, as the case may be, or shall result in
the entry of an order for relief or shall remain for 60 days
undismissed; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION VIII.1.10. IMPAIRMENT OF SECURITY, ETC. The Pledge Agreement
or the Guaranty, in whole or in material part, or any Lien granted under the
Pledge Agreement, shall (except in accordance with its terms and except as a
result of acts or omissions of any Agent or Lender) terminate, cease to be
effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; the Borrower, any other Obligor or
any other party shall, directly or indirectly, deny or disaffirm in writing
such effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION VIII.2. ACTION IF BANKRUPTCY. If any event of default described in
CLAUSES (A) through (D) of SECTION 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and
all other Obligations (including Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or
demand and the Borrower shall automatically and immediately be obligated to
deposit with the Administrative Agent cash collateral in an amount equal to
all Letter of Credit Outstandings.
SECTION VIII.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than any Event of Default described in CLAUSES (a) THROUGH (d)
of SECTION 8.1.9) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the
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direction of the Required Lenders, shall by notice to the Borrower declare
all or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable
and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which
shall be so declared due and payable shall be and become immediately due and
payable, without further notice, demand or presentment, and/or, as the case
may be, the Commitments shall terminate and the Borrower shall automatically
and immediately be obligated to deposit with the Administrative Agent cash
collateral in an amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION IX.1. ACTIONS. (a) Each Lender hereby appoints (i) DLJ as one
of its Co-Syndication Agents and as its Documentation Agent, (ii) Scotiabank
as one of its Co-Syndication Agents and as its Administrative Agent and (iii)
BancAmerica as its Syndication Agent, in each case under and for purposes of
this Agreement, the Notes and each other Loan Document. Each Lender
authorizes each such Agent to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the absence of
other written instructions from the Required Lenders received from time to
time by any particular Agent (with respect to which each Agent agrees that it
will comply, except as otherwise provided in this Section or as otherwise
advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated
to or required of such Agent by the terms hereof or thereof, together with
such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
each of the Agents and their respective directors, officers, employees or
agents, ratably in accordance with each such Lender's respective Term Loans
outstanding and Commitments (or, if no Term Loans or Commitments are at the
time outstanding or in effect, then ratably in accordance with the principal
amount of Term Loans held by such Lender, and each such Lender's respective
Commitments as in effect in each case on the date of the termination of this
Agreement), from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may
at any time be imposed on, incurred by, or asserted against, such Agent, in
any way relating to or arising out of this Agreement, the Notes and any other
Loan Document, including reasonable attorneys' fees, and as to which the same
is not reimbursed by the Borrower; PROVIDED, HOWEVER, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from the
gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents. No Agent shall be required to take any action
hereunder, under the Notes or under any other Loan Document, or to prosecute
or defend any suit in respect of this Agreement, the Notes or any other Loan
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of any Agent shall be or become, in such Agent's
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determination inadequate, such Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
(b) Each Lender with a Revolving Loan Commitment hereby irrevocably
appoints the Issuer to act on behalf of such Lenders with respect to any
Letters of Credit issued by the Issuer and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree
at the request of the Required Lenders to act for such Issuer with respect
thereto; PROVIDED, HOWEVER, that the Issuer shall have all of the benefits
and immunities (i) provided to the Administrative Agent in this ARTICLE IX
with respect to any acts taken or omissions suffered by the Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this ARTICLE IX, included the Issuer with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to the
Issuer.
SECTION IX.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the Business Day prior to a Borrowing that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the
Administrative Agent may assume that such Lender will make such amount
available to the Administrative Agent and, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If and to the extent
that such Lender shall not have made such amount available to the
Administrative Agent, such Lender and the Borrower severally agree to repay
the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Administrative
Agent made such amount available to the Borrower to the date such amount is
repaid to the Administrative Agent, at the interest rate applicable at the
time to Loans comprising such Borrowing, in the case of the Borrower, and, in
the case of a Lender, at the Federal Funds Rate for the first two Business
Days after which such amount has not been repaid, and thereafter at the
interest rate applicable to Loans comprising such Borrowing.
SECTION IX.3. EXCULPATION. None of the Agents nor any of their
respective directors, officers, employees or agents shall be liable to any
Lender or the Issuer for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any
collateral security, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan Document.
Any such inquiry which may be made by any such Agent shall not obligate such
Person to make any further inquiry or to take any action. Each of the Agents
shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent,
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certificate, statement or writing which it believes to be genuine and to have
been presented by a proper Person.
SECTION IX.4. SUCCESSOR. Any Agent may resign as such at any time upon
at least 30 days' prior notice to the Borrower and all Lenders. If any Agent
at any time shall resign, the Required Lenders may appoint another Lender
reasonably acceptable to the Borrower as a successor to such Agent which
shall thereupon become an Agent hereunder in such capacity as the retiring
Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving notice of resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be one of
the Lenders or a commercial banking institution organized under the laws of
the U.S. (or any State thereof) or a U.S. branch or agency of a commercial
banking institution, and having (x) a combined capital and surplus of at
least $250,000,000 and (y) a credit rating of AA or better by Moody's or a
comparable rating by S&P; PROVIDED, HOWEVER, that if, after expending all
reasonable commercial efforts, such retiring Agent is unable to find a
commercial banking institution which is willing to accept such appointment
and which meets the qualifications set forth in CLAUSE (y) above, such
retiring Agent, shall be permitted to appoint as its successor from all
available commercial banking institutions willing to accept such appointment
such institution having the highest credit rating of all such available and
willing institutions. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably request, and shall thereupon succeed to
and become vested with all rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's resignation
hereunder as Agent, the provisions of
(a) this ARTICLE IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement; and
(b) SECTIONS 10.3 and 10.4 shall continue to inure to its benefit.
SECTION IX.5. LOANS BY AGENTS. Each of the Agents shall have the same
rights and powers with respect to (x) the Credit Extensions made by it or any
of its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other Lender and may exercise the same as if it were not an Agent
hereunder. Each of the Agents and their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary or Affiliate of the Borrower as if it
were not an Agent hereunder.
SECTION IX.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of each of the Agents and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this Agreement,
the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to
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extend its Commitments. Each Lender also acknowledges that it will,
independently of each of the Agents and each other Lender, and based on such
other documents, information and investigations as it shall deem appropriate
at any time, continue to make its own credit decisions as to exercising or
not exercising from time to time any rights and privileges available to it
under this Agreement or any other Loan Document.
SECTION IX.7. COPIES, ETC. Each Agent shall give prompt notice to each
Lender and each other Agent of each notice or request required or permitted
to be given to such Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower).
Each Agent will distribute to each Lender and each other Agent each document
or instrument received for its account and copies of all other communications
received by such Agent from the Borrower for distribution to the Lenders by
the such Agent in accordance with the terms of this Agreement or any other
Loan Document.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and consented to by the Borrower and the Required Lenders; PROVIDED, HOWEVER,
that no such amendment, modification or waiver shall:
(a) extend any Commitment Termination Date, change any Commitment to
any other Commitment, amend, modify or waive any provision of this
SECTION 10.1 or reduce the percentages specified in the definitions of
the terms "Required Lenders", "Supermajority Revolving Lenders" or
"Supermajority Term A and B Lenders", or consent to the assignment or
transfer by the Borrower of its rights and obligations under any Loan
Document to which it is a party, in each case without the consent of
each Lender directly and adversely affected thereby;
(b) forgive any principal of or interest on any Lender's Loan, reduce
the stated rate of any interest hereunder or any fees described in
ARTICLE III payable to any Lender, extend the Stated Maturity Date for
any Lender's Loan or extend any scheduled time of payment of such
interest or such fees (other than as a result of waiving the
applicability of any post-default increase in interest rates) without
the consent of such Lender;
(c) increase the aggregate amount of any Lender's Percentage of
any Commitment Amount or increase the aggregate amount of any
Loans required to be made by a Lender pursuant to its Commitments
without the consent of such Lender;
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(d) extend the due date (other than the Stated Maturity Date, as to
which CLAUSE (B) above applies) for any scheduled repayment or
prepayment of, or decrease the relative proportion of any mandatory
prepayment to be received by the Lenders holding
(i) Revolving Loans without the consent of the Required Revolving
Lenders,
(ii) Term A Loans without the consent of the Required Term A Lenders
or
(iii) Term B Loans without the consent of the Required Term B
Lenders;
(e) except to the extent expressly permitted under the Loan
Documents, release (i) all or substantially all of the Obligors that
are guarantors under the Guaranty from their obligations under the
Guaranty or (ii) all or substantially all of the collateral security
provided under the Loan Documents, including all Pledged Shares (as
such term is defined in the Pledge Agreement), in either case without
the consent of (i) the Supermajority Revolving Lenders and (ii) the
Supermajority Term A and B Lenders; or
(f) affect adversely the interests, rights or obligations of any
Agent QUA such Agent, the Swing Line Lender QUA the Swing Line Lender
or the Issuer QUA the Issuer, unless consented to by such Agent, the
Swing Line Lender or the Issuer, as the case may be; and
PROVIDED, FURTHER, that at any time that no Default or Event of
Default has occurred and is continuing, the Revolving Loan
Commitment of any Lender may be increased (and such Lender's
Percentage and the Revolving Loan Commitment Amount may be
increased accordingly) to finance a Permitted Acquisition, with
the consent of such Lender and the Borrower and without the
consent of the Required Lenders, so long as (w) the Increased
Commitment Amount (as defined below) at such time, when added to
the amount of Indebtedness incurred pursuant to CLAUSE (K) of
SECTION 7.2.2 and outstanding at such time, does not exceed the
limits set forth therein, (x) the Borrower pledges the Capital
Stock of any Person acquired pursuant thereto to the
Administrative Agent to the extent required under SECTION 7.1.9,
(y) such acquired Person executes a supplement to the Guaranty to
the extent required under SECTION 7.1.9 and (z) to the extent
determined by the Administrative Agent to be necessary to ensure
pro rata borrowings commencing with the initial borrowing after
giving effect to such increase, the Borrower shall prepay any
LIBO Rate Loans outstanding immediately prior to such initial
borrowing; as used herein and in CLAUSES (G) and (K) of SECTION
7.2.2, the "INCREASED COMMITMENT AMOUNT" means at any time, the
aggregate amount of all increases pursuant to this PROVISO made
at or prior to such time less the aggregate amount of all
voluntary reductions of the Revolving Loan Commitment Amount made
prior to such time.
No failure or delay on the part of any Agent, the Issuer or
any Lender in exercising any power or right under this Agreement
or any other Loan Document shall operate as a waiver thereof, nor
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shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of
any other power or right. No notice to or demand on the Borrower
in any case shall entitle it to any notice or demand in similar
or other circumstances. No waiver or approval by any Agent, the
Issuer or any Lender under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver
or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
SECTION X.2. NOTICES. All notices and other communications
provided to any party hereto under this Agreement or any other
Loan Document shall be in writing or by facsimile and addressed,
delivered or transmitted to such party at its address or
facsimile number set forth below its signature hereto, in the
case of the Borrower or any Agent, or set forth below its name in
ANNEX I hereto or in a Lender Assignment Agreement, in the case
of any Lender (including in its separate capacity as the Swing
Line Lender or Issuer, if applicable), or at such other address
or facsimile number as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent
by pre-paid courier service, shall be deemed given when received;
any notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the
transmitter.
SECTION X.3. PAYMENT OF COSTS AND EXPENSES. The Borrower
agrees to pay or reimburse on demand all reasonable and
documented costs and expenses of the Agents (including the
reasonable, itemized fees and out-of-pocket expenses of counsel
to the Agents and of local and foreign counsel, if any, who may
be retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
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The Borrower further agrees to pay, and to save each Agent, the
Issuer and the Lenders harmless from all liability for, any stamp
or other taxes which may be payable in connection with the
execution or delivery of this Agreement, the Credit Extensions
hereunder, or the issuance of the Notes, Letters of Credit or any
other Loan Documents. The Borrower also agrees to reimburse each
Agent, the Issuer and each Lender upon demand for all reasonable
and documented out-of-pocket costs and expenses (including
reasonable attorneys' fees and legal expenses of counsel to each
Agent, the Issuer and each Lender) incurred by such Agent, the
Issuer or such Lender in connection with (x) the negotiation of
any restructuring or "work-out" with the Borrower, whether or not
consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION X.4. INDEMNIFICATION. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrower hereby indemnifies,
exonerates and holds each Agent, the Issuer and each Lender and
each their respective Affiliates, and each other Person
controlling any of the foregoing within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and each
of their respective officers, directors, employees and agents
(collectively, the "INDEMNIFIED PARTIES") free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements, whether incurred in connection
with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "INDEMNIFIED
LIABILITIES"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into, performance and enforcement of this Agreement
and any other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not any Agent, the Issuer or any Lender is party
thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by the Borrower or
any of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any
real property owned or operated by the Borrower or any Subsidiary
thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any
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Environmental Law), regardless of whether caused by, or within
the control of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification herein
shall survive payment in full of the Obligations and any transfer of
the property of the Borrower or any of its Subsidiaries by foreclosure
or by a deed in lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the control of,
the Borrower or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct or resulting from disputes among the
Agents, the Lenders and/or their transferees. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION X.5. SURVIVAL. The obligations of the Borrower under SECTIONS
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
SECTION 9.1, shall in each case survive any assignment from one Lender to
another (in the case of SECTIONS 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of
all the Commitments. The representations and warranties made by the Borrower
and each other Obligor in this Agreement and in each other Loan Document
shall survive the execution and delivery of this Agreement and each such
other Loan Document.
SECTION X.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION X.7. HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION X.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, each Agent and each
Lender (or notice thereof satisfactory to the Agents) shall have been
received by the Administrative Agent and notice thereof shall have been given
by the Administrative Agent to the Borrower and each Lender.
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SECTION X.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES AND
EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN
CHARGES AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A
SECURITY INTEREST OR MORTGAGE HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. This Agreement, the Notes, the other Loan
Documents and the Fee Letter constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and thereof and
supersede any prior agreements, written or oral, with respect thereto.
SECTION X.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that:
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Agents and all
Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to SECTION 10.11.
SECTION X.11. SALE AND TRANSFER OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS AND NOTES. Each Lender may assign, or sell participations in, its
Loans, Letters of Credit Outstandings and Commitments to one or more other
Persons in accordance with this SECTION 10.11.
SECTION X.11.1. ASSIGNMENTS. (a) Upon prior notice to the Borrower
and the Administrative Agent, any Lender may at any time assign and delegate
to one or more Eligible Assignees with the consent of the Borrower and the
Administrative Agent (which consents shall not be required if the Eligible
Assignee is a Lender or an Affiliate of a Lender and shall not be
unreasonably withheld or delayed if such consents are in fact required), all
or any fraction of such Lender's total Loans, Letter of Credit Outstandings
and Commitments in a minimum aggregate amount of the lesser of $5,000,000 (or
such lesser amount as may be agreed to by the Borrower and the Administrative
Agent in their sole and absolute discretion) and the entire remaining amount
of such Lender's Loans, Letter of Credit Outstandings and Commitments (except
that no such minimum shall be applicable on an assignment to a Lender or an
Affiliate of a Lender); PROVIDED, HOWEVER, that with respect to assignments
solely of Revolving Loans, the assigning Lender must assign a pro-rata
portion of each of its Revolving Loan Commitments, Revolving Loans and
interest in Letters of Credit Outstandings. The Borrower and each other
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Obligor and each of the Agents shall be entitled to continue to deal solely
and directly with such Lender in connection with the interests so assigned
and delegated to an Eligible Assignee until
(i) notice of such assignment and delegation, together with (A)
payment instructions, (B) the Internal Revenue Service Forms or
other statements contemplated or required to be delivered
pursuant to SECTION 4.6, if applicable, (C) addresses and related
information with respect to such Eligible Assignee, shall have
been delivered to the Borrower and the Administrative Agent by
such Lender and such Eligible Assignee and (D) the Administrative
Agent has made the appropriate entries in the Register;
(ii) such Eligible Assignee shall have executed and delivered to the
Borrower and the Administrative Agent a Lender Assignment Agreement,
accepted by such Agent; and
(iii) the processing fees described below shall have been paid.
From and after the date that such Agent accepts such Lender Assignment
Agreement, (x) the Eligible Assignee thereunder shall be deemed automatically
to have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Eligible Assignee in
connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the
other Loan Documents. Accrued interest on that part of the Loans assigned,
if any, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest and accrued fees shall be paid at the same time
or times provided in this Agreement. Such assignor Lender or such Eligible
Assignee must also pay a processing fee in the amount of $3,500 to the
Administrative Agent upon delivery of any Lender Assignment Agreement.
Notwithstanding any other term of this SECTION 10.11.1, the agreement of the
Swing Line Lender to provide the Swing Line Loan Commitment shall not impair
or otherwise restrict in any manner the ability of the Swing Line Lender to
make any assignment of its Loans or Commitments, it being understood and
agreed that the Swing Line Lender may terminate its Swing Line Loan
Commitment, either in whole or in part, in connection with the making of any
assignment. Any attempted assignment and delegation not made in accordance
with this SECTION 10.11.1 shall be null and void.
(b) Notwithstanding anything to the contrary set forth above, any
Lender may (without requesting the consent of the Borrower or the
Administrative Agent) pledge its Loans to a Federal Reserve Bank in support
of borrowings made by such Person from such Federal Reserve Bank. Upon the
request of the Lender, solely to facilitate the pledge or assignment of its
Loans to any Federal Reserve Bank, the Borrower shall issue Notes to such
Lender. Upon the request of an assignor Lender, if applicable, solely to
facilitate such pledge or assignment of its Loans to any Federal Reserve
Bank, the Borrower shall issue a reduced Note to such assignor in exchange
and replacement for its then existing Note. The reasonable costs and
expenses incurred in connection with the issuance of each Note shall be for
the account of the Borrower.
-101-
<PAGE>
(c) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent specified below its signature
hereto (or at such other address as may be designated by the Administrative
Agent from time to time in accordance with SECTION 10.2) a copy of each
Lender Assignment Agreement delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the
Commitment of and principal amount of the Loans owing to each Lender from
time to time. The entries in the Register shall be conclusive and binding,
in the absence of clearly demonstrable error, and the Borrower, the Agents
and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or
other obligation hereunder shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
SECTION X.11.2. PARTICIPATIONS. Upon prior written notice to the
Borrower and the Administrative Agent, any Lender may at any time sell to one
or more commercial lenders, financial institutions or other Persons (each of
such commercial lenders, financial institutions or other Persons being herein
called a "PARTICIPANT") participating interests in any of the Loans, Letter
of Credit Outstandings, Commitments, or other interests of such Lender
hereunder (including loan derivatives and similar swap arrangements based on
such Lender's interests hereunder); PROVIDED, HOWEVER, that
(a) no participation contemplated in this SECTION 10.11 shall relieve
such Lender from its Commitments or its other obligations hereunder or
under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and each Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the
other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender or is itself a Lender, or unless the Borrower otherwise agrees
in writing, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any
-102-
<PAGE>
Participant that such Lender will not, without such Participant's
consent, to the extent requiring the consent of such Lender, take
any action of the type described in CLAUSE (B) of SECTION 10.1;
and
(e) the Borrower shall not be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes
of SECTIONS 4.1, 4.3, 4.5, 4.6, 4.8, 7.1.1 and 10.4, shall be considered a
Lender. Each Participant shall only be indemnified for increased costs
pursuant to SECTION 4.3, 4.5 or 4.6 if and to the extent that the Lender
which sold such participating interest to such Participant concurrently is
entitled to make, and does make, a claim on the Borrower for such increased
costs. Any Lender that sells a participating interest in any Loan,
Commitment or other interest to a Participant under this SECTION 10.11.2
shall indemnify and hold harmless the Borrower and each Agent from and
against any taxes, penalties, interest or other costs or losses (including
reasonable attorneys' fees and expenses) incurred or payable by the Borrower
or such Agent as a result of the failure of the Borrower or such Agent to
comply with its obligations to deduct or withhold any Taxes from any payments
made pursuant to this Agreement to such Lender or such Agent, as the case may
be, which Taxes would not have been incurred or payable if such Participant
had been a Non-U.S. Lender that was entitled to deliver to the Borrower, such
Agent or such Lender, and did in fact so deliver, a duly completed and valid
Form 1001 or 4224 (or applicable successor form) entitling such Participant
to receive payments under this Agreement without deduction or withholding of
any United States federal taxes. If amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest
in amounts owing under this Agreement to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement.
SECTION X.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude any Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the
Borrower or such Affiliate is not restricted hereby from engaging with any
other Person.
SECTION X.13. CONFIDENTIALITY. Each Lender agrees to maintain, in
accordance with its customary procedures for handling confidential
information, the confidentiality of all information provided to it by or on
behalf of the Borrower or any Subsidiary, or by any Agent on the Borrower's
or such Subsidiary's behalf, under this Agreement or any other Loan Document
("CONFIDENTIAL INFORMATION"), and neither it nor any of its Affiliates shall
use any such information other than in connection with or in enforcement of
this Agreement and the other Loan Documents or in connection with other
business now or hereafter existing or contemplated with the Borrower or any
Subsidiary, except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by the
Lender or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided
-103-
<PAGE>
that such source is not bound by a confidentiality agreement with the
Borrower known to the Lender; PROVIDED, HOWEVER, that any Lender may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Lender is subject or in connection with
an examination of such Lender by any such Governmental Authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to
the extent reasonably required in connection with any litigation or
proceeding to which any Agent, any Lender or their respective Affiliates may
be party; (E) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan Document; (F) to
such Lender's independent auditors and other professional advisors who have
been advised that such information is confidential pursuant to this SECTION
10.13; (G) to any Participant or Eligible Assignee, actual or potential,
PROVIDED that such Person shall have agreed in writing to keep such
information confidential to the same extent required of the Lenders
hereunder; and (H) to its Affiliates who have been advised that such
information is confidential pursuant to this SECTION 10.13. Unless
prohibited by applicable law or court order, each Lender and each Agent shall
notify the Borrower of any request by any Governmental Authority (other than
any request in connection with an examination of the financial condition of
such Lender) for disclosure of Confidential Information prior to such
disclosure; PROVIDED FURTHER that in no event shall any Agent or any Lender
be obligated to return any materials furnished by the Borrower or any of its
Subsidiaries. This Section shall supersede any confidentiality letter or
agreement with respect to the Borrower or the Facilities entered into prior
to the date hereof.
SECTION X.14. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE
LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE COUNTY OF NEW YORK OF THE SATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE PERSONAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF
NEW YORK OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION, SUBJECT TO THE BORROWER'S RIGHT
TO CONTEST SUCH JUDGMENT BY MOTION OR APPEAL ON ANY GROUNDS NOT EXPRESSLY
WAIVED IN THIS SECTION 10.14. THE BORROWER IRREVOCABLY CONSENTS
-104-
<PAGE>
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION X.15. WAIVER OF JURY TRIAL. THE AGENTS, THE LENDERS, THE
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY AGENT, THE LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION
HEREWITH OR THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE LENDERS AND THE ISSUER
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
-105-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
KSL RECREATION GROUP, INC.
By:
--------------------------------
Title:
Address: 56-140 PGA Boulevard
La Quinta, California 92253
Facsimile No.: (619) 564-3560
Attention: Steve Elliot
-106-
<PAGE>
AGENTS:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION, as a Co-Syndication Agent
and the Documentation Agent
By
--------------------------------
Title:
Address: 277 Park Avenue
New York, New York 10127
Facsimile No.: (212) 892-5286
Attention: Wendy LaMantia
THE BANK OF NOVA SCOTIA, as a
Co-Syndication Agent and the
Administrative Agent
By
--------------------------------
Title:
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Todd Meller
-107-
<PAGE>
BANCAMERICA SECURITIES, INC., as the
Syndication Agent
By
--------------------------------
Title:
Address: 335 Madison Avenue
6th Floor
New York, New York 10017
Facsimile No.: (212) 503-7031
Attention: Jordan Schweon
-108-
<PAGE>
LENDERS:
DLJ CAPITAL FUNDING, INC.
By
--------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
--------------------------------
Title:
BANK OF AMERICA ILLINOIS
By
--------------------------------
Title:
BANKBOSTON, N.A.
By
--------------------------------
Title:
BANKERS TRUST COMPANY
By
--------------------------------
Title:
-109-
<PAGE>
CITICORP USA, INC.
By
--------------------------------
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
--------------------------------
Title:
CREDIT SUISSE FIRST BOSTON
By
--------------------------------
Title:
By
--------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
--------------------------------
Title:
FLEET NATIONAL BANK
By
--------------------------------
Title:
-110-
<PAGE>
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors, Inc.,
as Investment Advisor
By
--------------------------------
Title:
KZH HOLDING CORPORATION II
By
--------------------------------
Title:
LEHMAN COMMERCIAL PAPER INC.
By
--------------------------------
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND,
INC.
By
--------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By
--------------------------------
Title:
-111-
<PAGE>
NATIONAL WESTMINSTER BANK PLC
By
--------------------------------
Title:
-112-
<PAGE>
NATIONSBANK OF TEXAS, N.A.
By
--------------------------------
Title:
THE SAKURA BANK, LIMITED
By
--------------------------------
Title:
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By
--------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.
By
--------------------------------
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By
--------------------------------
Title:
-113-
<PAGE>
WELLS FARGO BANK, N.A.
By
--------------------------------
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
By
--------------------------------
Title:
THE CHASE MANHATTAN BANK
By
--------------------------------
Title:
-114-
<PAGE>
ANNEX I
LENDER INFORMATION
<TABLE>
<CAPTION>
1. DLJ CAPITAL FUNDING, INC.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 277 Park Avenue Address: 277 Park Avenue Revolving Loan Commitment
New York, NY 10172 New York, NY 10172 7.14285%
Facsimile No.: (212) 892-5286 Facsimile No.: (212) 892-5286 Term A Loan Commitment
5.50000%
Attention: Wendy LaMantia Attention: Wendy LaMantia Term B Loan Commitment
5.50000%
2. THE BANK OF NOVA SCOTIA
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: One Liberty Plaza Address: One Liberty Plaza Revolving Loan Commitment
New York, NY 10006 New York, NY 10006 7.14285%
Facsimile No.: (212) 225-5090 Facsimile No.: (212) 225-5090 Term A Loan Commitment
21.00000%
Attention: Todd Meller Attention: Todd Meller
Term B Loan Commitment
21.00000%
3. BANK OF AMERICA ILLINOIS
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 200 West Jackson Blvd. Address: 200 West Jackson Blvd. Revolving Loan Commitment
Chicago, IL 60697 Chicago, IL 60697 7.14285%
Facsimile No.: (312) 974-9626 Facsimile No.: (312) 974-9626 Term A Loan Commitment
5.50000%
Attention: Maryann Patmon Attention: Maryann Patmon
Term B Loan Commitment
5.50000%
4. BANKBOSTON, N.A.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 100 Federal Street Address: 100 Federal Street Revolving Loan Commitment
Boston, MA 02110 Boston, MA 02110 4.28571%
Facsimile No.: (617) 434-9820 Facsimile No.: (617) 434-9820 Term A Loan Commitment
2.50000%
Attention: Halise Shrago Attention: Halise Shrago
Term B Loan Commitment
2.50000%
5. BANKERS TRUST COMPANY
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 300 South Grand Avenue Address: 300 South Grand Avenue Revolving Loan Commitment
Los Angeles, CA 90071 Los Angeles, CA 90071 5.14285%
Facsimile No.: (213) 620-8484 Facsimile No.: (213) 620-8484 Term A Loan Commitment
5.00000%
Attention: David Hadley Attention: David Hadley
Term B Loan Commitment
5.00000%
6. CITICORP USA, INC.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 399 Park Avenue Address: Citibank, N.A. Revolving Loan Commitment
6th Floor - Zone 4 Leuisham House 4.92857%
New York, NY 10043 25 Molesworth Street
London, England SE137EX Term A Loan Commitment
Facsimile No.: (212) 758-6278 4.37500%
Facsimile No.: 011-441-715004482
Attention: Charles Foster Term B Loan Commitment
Attention: Maxine O'Hara 4.37500%
7. CREDIT LYONNAIS NEW YORK BRANCH
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 1301 Ave. of the Americas Address: 1301 Ave. of the Americas Revolving Loan Commitment
New York, NY 10019 New York, NY 10019 4.92857%
Facsimile No.: (212) 459-3176 Facsimile No.: (212) 459-3176 Term A Loan Commitment
4.37500%
Attention: Michael Henderlong Attention: Michael Henderlong
Term B Loan Commitment
4.37500%
8. CREDIT SUISSE FIRST BOSTON
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 11 Madison Avenue Address: 11 Madison Avenue Revolving Loan Commitment
New York, NY 10010 New York, NY 10010 4.00000%
Facsimile No.: (212) 325-8319 Facsimile No.: (212) 325-8319 Term A Loan Commitment
1.5000%
Attention: Gina Manginello Attention: Gina Manginello
Term B Loan Commitment
1.50000%
9. THE FIRST NATIONAL BANK OF
CHICAGO
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: One First Nat'l Plaza Address: One First Nat'l Plaza Revolving Loan Commitment
10th Fl., Suite 0634 10th Fl., Suite 0634 6.28571%
Chicago, IL 60670 Chicago, IL 60670
Term A Loan Commitment
Facsimile No.: (312) 732-4840 Facsimile No.: (312) 732-4840 0%
Attention: Sharon Bosch Attention: Sharon Bosch Term B Loan Commitment
0%
10. FLEET NATIONAL BANK
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: One Federal Street Address: One Federal Street Revolving Loan Commitment
Boston, MA 02211 Boston, MA 02211 4.28571%
Facsimile No.: (617) 346-4806 Facsimile No.: (617) 346-4806 Term A Loan Commitment
2.50000%
Attention: Terri DeMarco Attention: Terri DeMarco
Term B Loan Commitment
2.50000%
11. THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 333 South Grand Avenue Address: 333 South Grand Avenue Revolving Loan Commitment
Suite 4250 Suite 4250 0%
Los Angeles, CA 90071 Los Angeles, CA 90071
Term A Loan Commitment
Facsimile No.: (213) 626-6552 Facsimile No.: (213) 626-6552 4.00000%
Attention: Lenore Crummey-Benoit Attention: Lenore Crummey-Benoit Term B Loan Commitment
4.00000%
12. KZH HOLDING CORPORATION II
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: KZH Holding Corporation II Attention: Robert Goodwin Revolving Loan Commitment
c/o Chase Manhattan Bank Address: KZH Holding Corporation II 0.00000%
450 West 33rd St. 15th Fl. c/o Chase Manhattan Bank
New York, New York 10001 450 West 33rd St. 15th Fl. Term A Loan Commitment
New York, New York 10001 4.00000%
Facsimile No.: (212) 946-7776
Facsimile No.: (212) 946-7776 Term B Loan Commitment
4.00000%
Attention: Robert Goodwin Attention: Robert Goodwin
13. LEHMAN COMMERCIAL PAPER INC.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
Address: 3 World Financial Center Address: 3 World Financial Center Revolving Loan Commitment
10th Floor 10th Floor 4.28571%
New York, New York 10285 New York, New York 10285
Term A Loan Commitment
Facsimile No.: (212) 528-0819 Facsimile No.: (212) 528-0819 2.50000%
Attention: Michele Swanson Attention: Michele Swanson Term B Loan Commitment
2.50000%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
14. MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 800 Scudders Mill Road Address: 800 Scudders Mill Road Revolving Loan Commitment
Plainsboro, NJ 08536 Plainsboro, NJ 08536 0%
Facsimile No.: (609) 282-2756 Facsimile No.: (609) 282-2756 Term A Loan Commitment
8.00000%
Attention: Jill Montanye Attention: Jill Montanye
Term B Loan Commitment
8.00000%
15. MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 500 Stanton Christiana Rd. Address: 500 Stanton Christiana Rd. Revolving Loan Commitment
Mail Code: 3/OPS2 Mail Code: 3/OPS2 4.92857%
Newark, DE 19713 Newark, DE 19713
Term A Loan Commitment
Facsimile No.: (302) 634-4110 Facsimile No.: (302) 634-4110 4.37500%
Attention: Colleen McCloskey Attention: Colleen McCloskey Term B Loan Commitment
4.37500%
16. NATIONAL WESTMINSTER BANK PLC
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 175 Water Street Address: 175 Water Street Revolving Loan Commitment
New York, NY 10038 New York, NY 10038 4.92857%
Facsimile No.: (212) 602-4118 Facsimile No.: (212) 602-4118 Term A Loan Commitment
4.37500%
Attention: Rich Biggica Attention: Rich Biggica
Term B Loan Commitment
4.37500%
17. NATIONSBANK OF TEXAS, N.A.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 901 Main Street Address: 901 Main Street Revolving Loan Commitment
Dallas, TX 75202 Dallas, TX 75202 8.00000%
Facsimile No.: (214) 508-2118 Facsimile No.: (214) 508-2118 Term A Loan Commitment
0%
Attention: Karen Puente Attention: Karen Puente
Term B Loan Commitment
0%
18. THE SAKURA BANK, LIMITED
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 277 Park Avenue Address: 277 Park Avenue Revolving Loan Commitment
45th Floor 45th Floor 4.28571%
New York, New York 10172 New York, New York 10172
Term A Loan Commitment
Facsimile No.: (212) 888-7651 Facsimile No.: (212) 888-7651 2.50000%
Attention: Yoshikazu Nagura Attention: Yoshikazu Nagura Term B Loan Commitment
2.50000%
19. THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 277 Park Avenue Address: 277 Park Avenue Revolving Loan Commitment
New York, NY 10172 New York, NY 10172 4.28571%
Facsimile No.: (212) 224-5188 Facsimile No.: (212) 224-5188 Term A Loan Commitment
2.50000%
Attention: Gregory Aptman Attention: Gregory Aptman
Term B Loan Commitment
2.50000%
20. UNION BANK OF CALIFORNIA, N.A.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 70 South Lake Avenue Address: 70 South Lake Avenue Revolving Loan Commitment
Suite 900 Suite 900 5.71428%
Pasadena, CA 91101 Pasadena, CA 91101
Term A Loan Commitment
Facsimile No.: (818) 304-1846 Facsimile No.: (818) 304-1846 1.00000%
Attention: Angela Tiao Attention: Angela Tiao Term B Loan Commitment
1.00000%
21. VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: One Parkview Plaza Address: One Parkview Plaza Revolving Loan Commitment
Oakbrook Terrace, IL Oakbrook Terrace, IL 0%
60181 60181
Term A Loan Commitment
Facsimile No.: (630) 684-6740/41 Facsimile No.: (630) 684-6740/41 8.00000%
Attention: Brian Murphy Attention: Brian Murphy Term B Loan Commitment
8.00000%
WITH A COPY TO: WITH A COPY TO:
State Street Bank & Trust State Street Bank & Trust
Corporate Trust Department Corporate Trust Department
P.O. Box 778 P.O. Box 778
Boston, MA 02102 Boston, MA 02102
Facsimile No.: (617) 664-5366/67 Facsimile No.: (617) 664-5366/67
Attention: Laura Magazu Attention: Laura Magazu
22. WELLS FARGO BANK, N.A.
DOMESTIC OFFICE: LIBOR OFFICE:
---------------- -------------
<S> <C> <C>
Address: 555 Montgomery Street Address: 555 Montgomery Street Revolving Loan Commitment
17th Floor, MAC 0167-173 17th Floor, MAC 0167-173 4.28571%
San Francisco, CA 94163 San Francisco, CA 94163
Term A Loan Commitment
Facsimile No.: (415) 362-5081 Facsimile No.: (415) 362-5081 2.50000%
Attention: David Neumann Attention: David Neumann Term B Loan Commitment
2.50000%
23. MORGAN STANLEY SENIOR FUNDING, INC.
DOMESTIC OFFICE: LIBOR OFFICE:
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Address: 1585 Broadway, 10th Floor Address: 1585 Broadway, 10th Floor Revolving Loan Commitment
New York, NY 10036 New York, NY 10036 0%
Facsimile No.: (212) 761-0592 Facsimile: (212) 761-0592 Term A Loan Commitment
2.50000%
Attention: John Milad Attention: John Milad
Term B Loan Commitment
2.50000%
24. THE CHASE MANHATTAN BANK
DOMESTIC OFFICE: LIBOR OFFICE:
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Address: 270 Park Avenue Address: 270 Park Avenue
New York, NY 10017 New York, NY 10017
Facsimile No.: (212) 270-1848 Facsimile No.: (212) 270-1848
Attention: Peter Eckstein Attention: Peter Eckstein
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms 2
1.2. Use of Defined Terms 40
1.3. Cross-References 40
1.4. Accounting and Financial Determinations 40
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES
AND LETTERS OF CREDIT
2.1. Commitments 41
2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment 41
2.1.2. Letter of Credit Commitment 41
2.1.3. Term Loan Commitment 42
2.1.4. Lenders Not Permitted or Required to Make Loans 42
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit 43
2.2. Reduction of the Commitment Amounts 43
2.2.1. Optional 43
2.2.2. Mandatory 44
2.3. Borrowing Procedures 44
2.3.1. Borrowing Procedure 44
2.3.2. Swing Line Loans 45
2.4. Continuation and Conversion Elections 46
2.5. Funding 47
2.6. Issuance Procedures 47
2.6.1. Other Lenders' Participation 48
2.6.2. Disbursements 48
2.6.3. Reimbursement 49
2.6.4. Deemed Disbursements 49
2.6.5. Nature of Reimbursement Obligations 50
2.6.6. Uniform Customs and Practice 50
2.7. Loan Accounts and Notes 50
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application 51
3.1.1. Repayments and Prepayments 51
3.1.2. Application 55
3.2. Interest Provisions 57
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3.2.1. Rates 57
3.2.2. Post-Maturity Rates 57
3.2.3. Payment Dates 58
3.3. Fees 58
3.3.1. Commitment Fee 58
3.3.2. Arrangement and Agency Fees 59
3.3.3. Letter of Credit Fee 59
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful 59
4.2. Deposits Unavailable 60
4.3. Change of Circumstances 60
4.4. Replacement of Lender 61
4.5. Funding Losses 62
4.6. Taxes 62
4.7. Change of Lending Office 65
4.8. Payments, Computations, etc. 65
4.9. Sharing of Payments 66
4.10. Setoff 66
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS
5.1. Conditions Precedent to the Effectiveness of this Agreement 67
5.2. All Credit Extensions 67
5.2.1. Compliance with Warranties, No Default, etc. 67
5.2.2. Credit Extension Request, etc. 67
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. 68
6.2. Due Authorization, Non-Contravention, etc. 68
6.3. Government Approval, Regulation, etc. 69
6.4. Validity, etc. 69
6.5. Financial Information 69
6.6. No Material Adverse Change 70
6.7. Litigation, Labor Controversies, etc.; No Violation of Law. 70
6.8. Subsidiaries 70
6.9. Ownership of Properties 70
6.10. Taxes 70
6.11. ERISA Compliance 71
6.12. Compliance with Environmental Laws 71
6.13. Regulations G, U and X 72
6.14. Accuracy of Information 72
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ARTICLE VII COVENANTS
7.1. Affirmative Covenants 73
7.1.1. Financial Information, Reports, Notices, etc. 73
7.1.2. Preservation of Corporate Existence, etc. 76
7.1.3. Maintenance of Properties 76
7.1.4. Payment of Taxes 77
7.1.5. Compliance with Statutes, etc. 77
7.1.6. Insurance 77
7.1.7. Inspection Of Property and Books and Records 77
7.1.8. Guaranty by each of The Fairways Group, L.P.
and its Subsidiaries 78
7.1.9. Future Subsidiaries 78
7.1.10. Use of Proceeds 78
7.1.11. Transactions with Affiliates 79
7.1.12. Business Activities 79
7.1.13. End of Fiscal Year 79
7.2. Negative Covenants 79
7.2.1. Modification of Certain Agreements 79
7.2.2. Indebtedness 79
7.2.3. Liens 82
7.2.4. Financial Condition and Operations 85
7.2.5. Investments 86
7.2.6. Restricted Payments, etc. 88
7.2.7. Consolidations and Mergers; Sales of Assets. 90
ARTICLE VIII EVENTS OF DEFAULT
8.1. Listing of Events of Default 90
8.1.1. Non-Payment of Obligations 90
8.1.2. Breach of Warranty 91
8.1.3. Non-Performance of Certain Covenants and Obligations 91
8.1.4. Non-Performance of Other Covenants and Obligations 91
8.1.5. Default on Other Indebtedness 91
8.1.6. Judgments 91
8.1.7. ERISA 91
8.1.8. Control of the Borrower 92
8.1.9. Bankruptcy, Insolvency, etc. 92
8.1.10. Impairment of Security, etc. 92
8.2. Action if Bankruptcy 92
8.3. Action if Other Event of Default 93
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ARTICLE IX THE AGENTS
9.1. Actions 93
9.2. Funding Reliance, etc. 94
9.3. Exculpation 94
9.4. Successor 95
9.5. Loans by Agents 95
9.6. Credit Decisions 96
9.7. Copies, etc. 96
ARTICLE X MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc. 96
10.2. Notices 98
10.3. Payment of Costs and Expenses 98
10.4. Indemnification 99
10.5. Survival 00
10.6. Severability 100
10.7. Headings 101
10.8. Execution in Counterparts, Effectiveness, etc. 101
10.9. Governing Law; Entire Agreement 101
10.10. Successors and Assigns 101
10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes 101
10.11.1. Assignments 102
10.11.2. Participations 104
10.12. Other Transactions 105
10.13. Confidentiality 105
10.14. Forum Selection and Consent to Jurisdiction 106
10.15. Waiver of Jury Trial 107
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ANNEX I - Lender Information
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Specified Real Properties
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT A-4 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Pledge Agreement
EXHIBIT G - Form of Guaranty
EXHIBIT H - Form of Lender Assignment Agreement
EXHIBIT I - Form of Solvency Certificate
EXHIBIT J-1 - Form of Opinion of Simpson, Thacher & Bartlett, Special
Counsel to the Borrower and each of the other Obligors
EXHIBIT J-2 - Form of Opinion of Nola S. Dyal, Esq., General Counsel to
the Borrower and each of the other Obligors
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