SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C.
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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) October 31, 1996
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PREMIER PARKS INC.
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Delaware 0-9789 73-613774
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(State or other (Commission (IRS Employer
jurisdiction of) File Number) Identification)
11501 Northeast Expressway, Oklahoma City, Oklahoma 63131
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(Address of principal executive offices)
Registrant's telephone number, including area code (405) 475-2500
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(former name or former address, if changed since last report)
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ITEM 2. Acquisition or Disposition of Assets
On October 31, 1996, the Company acquired (the "Acquisition") substantially
all of the assets of Elitch Gardens Company, a Colorado limited partnership
("Elitch"), used in the operation of Elitch Gardens Amusement Park, for an
aggregate purchase price (the "Purchase Price") of approximately $62.5 million
in cash, pursuant to an Asset Purchase Agreement, dated as of September 23,
1996, by and among the Company, a wholly-owned subsidiary of the Company,
Elitch, the general partner of Elitch and a principal limited partner of Elitch
(as amended, the "Agreement").
The Company funded approximately 50% of the Purchase Price from cash from
operations and a portion of the net proceeds received by the Company from its
public offering of Common Stock in June 1996 with the balance funded with a
borrowing under the New Credit Facility (as hereinafter defined).
Pursuant to the Agreement, the general partner and a principal limited
partner of Elitch have agreed severally to indemnify the Company for customary
losses in an amount up to $1.0 million each.
In connection with the Acquisition and certain other pending acquisitions
which the Company expects to close in November and December of 1996
(collectively, the "Recent Acquisitions"), in October 1996 the Company entered
into a senior secured credit facility (the "New Credit Facility") with certain
institutional lenders. The New Credit Facility has an aggregate availability of
$115.0 million of which (i) up to $30.0 million under the revolving credit
facility (the "Revolving Credit Facility") may be used for working capital and
other general corporate purposes; (ii) up to $25.0 million ("Facility A") may be
used to finance capital expenditures prior to April 30, 1998; and (iii) up to
$60.0 million ("Facility B" and together with Facility A, the "Term Loan
Facility") may be used to finance certain acquisitions by the Company (including
the Recent Acquisitions), including an amount of up to $2.0 million which may be
used to finance improvements at the parks acquired, provided that at least 50%
of the consideration for any such acquisition or improvements under Facility A
or Facility B must be funded by the Company. As of the date of this Report,
approximately $31.6 million has been borrowed under Facility B to fund
approximately 50% of the Purchase Price of the Acquisition. Interest rates per
annum under the New Credit Facility are equal a base rate equal to the higher of
the Federal Funds Rate plus 1/2% or the prime rate of Citibank, N.A., in each
case, plus the Applicable Margin (as defined therein) or the London Interbank
Offered Rate plus the Applicable Margin. The Revolving Credit Facility
terminates October 31, 2002 (reducing to $15.0 million after October 31, 2001)
and borrowings under the Term Loan Facility mature October 31, 2001; however,
aggregate principal payments of $7.5 million, $20.0 million 25.0 and $32.5
million are required under the Term Loan Facility during 1998, 1999, 2000 and
2001, respectively. Revolving credit borrowings under the New Credit Facility
will be secured by substantially all of the Company's assets. Term Loan
borrowings are secured by the assets acquired with the proceeds thereof,
together with guarantees, limited to approximately $17.5 million, by the
Company's subsidiaries.
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ITEM 7. Financial Statements and Exhibits
(a) Financial Statements of Elitch at December 31, 1995 and for the year
then ended and at September 30, 1996 and the nine-month period then ended will
be filed by amendment promptly hereafter, but in no event later than 60 days
following the date of this Report.
(b) Pro Forma financial statements at December 31, 1995 and for the year
then ended and at September 30, 1996 and the nine-month period then ended will
be filed by amendment promptly hereafter, but in no event later than 60 days
following the date of this Report.
(c) The following documents are filed herewith as exhibits to this Form
8-K:
10(a) Asset Purchase Agreement, dated September 23, 1996, among the
Registrant, Premier Parks Acquisition Corp., Elitch Gardens Company, Chilcott
Entertainment Corp. and Hensel Phelps Construction Corp. (schedules and exhibits
intentionally omitted).
(b) Credit Agreement, dated October 30, 1996, between the Registrant and
Lehman Commercial Paper Inc., as administrative agent and arranger (schedules
and exhibits intentionally omitted).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: November 13, 1996
PREMIER PARKS INC.
By: /s/ Kieran E. Burke
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Kieran E. Burke
Chairman of the Board
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: November __, 1996
PREMIER PARKS INC.
By:
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Kieran E. Burke
Chairman of the Board
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EXHIBIT 10(a)
ASSET PURCHASE AGREEMENT
BY AND AMONG
PREMIER PARKS INC.,
PREMIER PARKS COLORADO INC.,
ELITCH GARDENS COMPANY,
CHILCOTT ENTERTAINMENT COMPANY
AND
HENSEL PHELPS CONSTRUCTION CO.
SEPTEMBER 23, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I - SALE AND PURCHASE..............................................-1-
SECTION 1.1 Assets to be Sold and Purchased............................-1-
SECTION 1.2 Assumed Liabilities........................................-4-
SECTION 1.3 Purchase Price.............................................-6-
SECTION 1.4 Allocation of the Purchase Price...........................-8-
SECTION 1.5 Closing....................................................-8-
ARTICLE II - REPRESENTATIONS, WARRANTIES OF
SELLER AND PARTNERS .........................................-8-
SECTION 2.1 Authority Relative to this Agreement.......................-8-
SECTION 2.2 No Conflicts; Consents.....................................-9-
SECTION 2.3 Partnership Existence and Power...........................-10-
SECTION 2.4 Formation Documents.......................................-10-
SECTION 2.5 Financial Information.....................................-10-
SECTION 2.6 Liabilities...............................................-11-
SECTION 2.7 Inventory.................................................-11-
SECTION 2.8 Absence of Certain Changes................................-11-
SECTION 2.9 The Assets................................................-12-
SECTION 2.10 Contracts.................................................-12-
SECTION 2.11 Intellectual Property.....................................-13-
SECTION 2.12 Claims and Proceedings....................................-13-
SECTION 2.13 Tax Matters...............................................-14-
SECTION 2.14 Employee Benefits Plans...................................-15-
SECTION 2.15 Employee-Related Matters..................................-16-
SECTION 2.16 Insurance.................................................-17-
SECTION 2.17 Compliance with Laws......................................-17-
SECTION 2.18 Permits...................................................-18-
SECTION 2.19 Environmental Matters.....................................-18-
SECTION 2.20 Finders; Fees.............................................-18-
SECTION 2.21 Ability to Conduct Business...............................-18-
SECTION 2.22 Transaction Shares........................................-18-
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
PREMIER AND BUYER..........................................-19-
SECTION 3.1 Authority Relative to This Agreement......................-19-
SECTION 3.2 No Conflicts; Consents....................................-19-
SECTION 3.3 Corporate Existence and Power.............................-20-
SECTION 3.4 Finders; Fees.............................................-20-
SECTION 3.5 Premier Reports...........................................-20-
SECTION 3.6 Transaction Shares........................................-21-
ARTICLE IV - COVENANTS AND AGREEMENTS.....................................-21-
SECTION 4.1 Conduct of Business of Seller.............................-21-
SECTION 4.2 Corporate Examinations and Investigations.................-22-
SECTION 4.3 Additional Financial Statements...........................-22-
SECTION 4.4 Filings and Authorizations................................-23-
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TABLE OF CONTENTS
Page
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SECTION 4.5 Efforts to Consummate.....................................-23-
SECTION 4.6 Negotiations With Others..................................-23-
SECTION 4.7 Notices of Certain Events.................................-24-
SECTION 4.8 Public Announcements......................................-24-
SECTION 4.9 Covenant Not-to-Compete...................................-24-
SECTION 4.10 Expenses. ................................................-26-
SECTION 4.11 Tax Matters. .............................................-26-
SECTION 4.12 Employee Matters..........................................-26-
SECTION 4.13 Certain Renewals..........................................-27-
SECTION 4.14 Collection of Accounts Receivable.........................-28-
SECTION 4.15 Transfer-related Taxes and Fees; Allocations..............-28-
SECTION 4.16 Payment of Creditors......................................-29-
SECTION 4.17 Access....................................................-29-
SECTION 4.18 Premier Filings...........................................-29-
SECTION 4.19 Capital Improvements......................................-30-
SECTION 4.20 Season Passes.............................................-30-
SECTION 4.21 Prepaid Expenses..........................................-30-
SECTION 4.22 Structuring...............................................-31-
ARTICLE V - CONDITIONS TO CLOSING.........................................-31-
SECTION 5.1 Conditions to the Obligations of the Parties..............-31-
SECTION 5.2 Conditions to the Obligations of Seller...................-31-
SECTION 5.3 Conditions to the Obligations of Premier and
Buyer.....................................................-33-
ARTICLE VI - INDEMNIFICATION..............................................-36-
SECTION 6.1 Survival of Representations and Warranties................-36-
SECTION 6.2 Obligation of the Partners to Indemnify...................-37-
SECTION 6.3 Obligation of Premier and Buyer to Indemnify..............-37-
SECTION 6.4 Notice and Opportunity to Defend Third Party
Claims....................................................-38-
SECTION 6.6 Adjustment................................................-39-
SECTION 6.7 Exclusive Remedy..........................................-39-
ARTICLE VII - SPECIFIC PERFORMANCE; TERMINATION...........................-39-
SECTION 7.1 Specific Performance and Damages..........................-39-
SECTION 7.2 Termination...............................................-40-
SECTION 7.3 Effect of Termination; Right to Proceed...................-41-
ARTICLE VIII - MISCELLANEOUS..............................................-41-
SECTION 8.1 Notices...................................................-41-
SECTION 8.2 Entire Agreement..........................................-43-
SECTION 8.3 Waivers and Amendments; Non-Contractual
Remedies; Preservation of Remedies........................-43-
SECTION 8.4 Governing Law.............................................-43-
SECTION 8.5 Binding Effect; No Assignment.............................-43-
SECTION 8.6 Exhibits..................................................-44-
SECTION 8.7 Severability..............................................-44-
SECTION 8.8 Counterparts..............................................-44-
SECTION 8.9 Third Parties.............................................-44-
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TABLE OF CONTENTS
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SECTION 8.10 Power of Attorney; Further Assurances.....................-44-
SECTION 8.11 Title and Risk of Loss....................................-45-
ARTICLE IX - DEFINITIONS..................................................-45-
SECTION 9.1 Definitions...............................................-45-
SECTION 9.2 Interpretation............................................-52-
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated September 23, 1996, by and among Premier
Parks Acquisition Corp., a New York corporation ("Buyer"), Premier Parks Inc., a
Delaware corporation ("Premier"), Elitch Gardens Company, a Colorado limited
partnership ("Seller"), Chilcott Entertainment Corp., a Colorado corporation and
the general partner of Seller ("General Partner"), and Hensel Phelps
Construction Co., a Delaware corporation, one of the limited partners of Seller
(the "Limited Partner" and together with the General Partner, the "Partners").
W I T N E S S E T H:
WHEREAS, Seller owns and operates Elitch Gardens Amusement Park (the
"Park"), such ownership and operations being referred to herein as the
"Business;" and
WHEREAS, Seller desires to sell and assign, and Buyer desires to purchase
and assume, substantially all of the assets and certain liabilities relating to
the Business upon and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
SALE AND PURCHASE
SECTION 1.1 Assets to be Sold and Purchased. (a) Subject to Section 1.1(b)
and the other terms and conditions hereof, Seller shall sell, assign, transfer,
convey and deliver to Buyer free and clear of all Liens (other than Permitted
Liens), and Buyer shall purchase from Seller, all of the Seller's property,
assets and rights used or held for use in the Business (collectively, the
"Assets"), subject to all Assumed Liabilities, including:
(i) all of Seller's right, title and interest in and to the real
property (the "Land") owned by Seller and used in the Business and all
buildings, improvements and fixtures constructed thereon (the "Improvements,"
and together with Land, the "Real Property");
(ii) all of Seller's rights in and to the rides, machinery, equipment,
tools, supplies, spare parts,
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rolling stock, furniture and other tangible personal property used or held for
use in the Business and owned or leased by Seller or the General Partner
(excluding Memorabilia as defined below owned by General Partner) (the
"Equipment") on the Closing Date;
(iii) all proceeds from the sale of season passes and any other
pre-sold tickets with respect to the 1997 season of the Park ("Prepaid
Deposits") as of the Closing Date;
(iv) all of Seller's rights in, to and under all patents, patent
applications, trade names, trademarks, copyrights, servicemarks, trademark and
servicemark registrations and applications (including, without limitation, all
of Seller's right to use the name "Elitch Gardens" and any derivation thereof),
whether or not used in the Business, subject to a perpetual, irrevocable and
nontransferable license to use the words "Elitch" and "Elitch's" (A) granted to
the Elitch's Youth Foundation, and (B) as part of the name "Historic Elitch's"
or "Old Elitch's" granted to Seller or an assignee of Seller in connection with
the historic theater now located at the old Elitch's Park site at 38th and
Tennyson Streets;
(v) all of Seller's rights in, to and under trade secrets, formulae
and specifications and technical know-how, whether currently being used or under
development, including engineering and other drawings, data, design and
specifications, product literature and related materials, in each case which are
owned or licensed by Seller as of the Closing Date (together with the
intellectual property described in Section 1.1(a)(iv), the "Intellectual
Property Rights") and all of Seller's books, records and computer programs
relating thereto;
(vi) all of Seller's rights in, to and under the goodwill of the
Business;
(vii) Seller's rights, subject to the Assumed Liabilities, under all
Contracts listed on Schedule 1.1(a)(vii), including the Ascent Agreement and the
Centennial Park Agreement (the "Transferred Contracts") and all prepaid
expenses, claims and other prepayments, including security deposits and other
retentions held by third parties, with respect to the Transferred Contracts as
of the Closing Date, provided, that Buyer's obligations under the Centennial
Park Agreement with respect to the development thereof shall not exceed $100,000
(the "Maximum Amount");
(viii) all of Seller's Inventory, wherever located, with respect to
the Business as such exists on the Closing Date;
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(ix) all of Seller's rights under all governmental licenses, permits
and approvals (the "Permits") relating to or necessary to the conduct of the
Business as of the Closing Date, to the extent such Permits are transferable;
and
(x) all books and records relating to the Business and the Assets and
owned by Seller (but not those items of memorabilia and historic interest with
respect to the old Elitch's Park ("Memorabilia") owned on the date hereof by the
General Partner), whether kept or maintained by Seller, the General Partner or
any third party, including, without limitation, copies of lists of customers and
suppliers; admission tickets; season passes; records with respect to costs;
Inventory and Equipment; business development plans; advertising materials,
catalogues, correspondence, mailing lists, photographs, sales materials and
records; purchasing materials and records; personnel records with respect to
employees of the Business; media materials and plates; videotapes and films;
sales order files; records, supporting documents and exemption certificates with
respect to sales Taxes; ledgers and other books of account; plans,
specifications, surveys, reports and other materials relating to the Real
Property; other records required to continue the Business as heretofore and now
being conducted by or on behalf of Seller; and all software programs, computer
printouts, databases and related items with respect to the foregoing or
otherwise used in the Business. The General Partner intends to provide Buyer,
after the Closing, with access to the Memorabilia in connection with Buyer's
operation of the Business at such times and for purposes as shall be acceptable
to the General Partner.
(b) The Assets shall exclude the following assets and property (the
"Excluded Assets"):
(i) all of Seller's rights, title and interest in and to the
Transaction Documents;
(ii) cash on hand, cash equivalents, investments (including, without
limitation, stock, debt instruments, options and other instruments and
securities) and bank deposits (other than the Accounts) of Seller as of the
Closing Date;
(iii) all of the accounts receivable of Seller as of the Closing Date;
(iv) Tax refunds and recoveries and similar benefits of Seller, and
all of Seller's income Tax Returns and records as of the Closing Date;
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(v) all minute books and partnership records of Seller;
(vi) Seller's rights under any Employee Benefit Plans;
(vii) all of Seller's rights under any Insurance Policies or other
Contracts, other than the Transferred Contracts;
(viii) all claims by Seller against those parties with respect to
those matters disclosed on Schedule 1.1(b)(viii); and
(ix) all assets relating to any of the operations of the General
Partner, other than the Business.
SECTION 1.2 Assumed Liabilities. (a) Subject to the provisions of Section
1.2(b), Buyer shall assume, pay, fulfill, perform or otherwise discharge the
Approved Prepaid Expenses and the Liabilities and obligations of Seller arising
and to be performed after the Closing under the Transferred Contracts except as
provided in Section 1.2(b)(vi) below, including the Contracts relating to the
Assumed Debt or relating to the Elitch's Youth Foundation (the "Assumed
Liabilities").
(b) Buyer shall not assume or be bound by or otherwise be responsible for
any duties, responsibilities, obligations or Liabilities of Seller of any kind
or nature, known, unknown, contingent or otherwise, other than Liabilities
expressly assumed by it pursuant to Section 1.2(a). Without limiting the
generality of the foregoing, except as otherwise provided in this Agreement,
Buyer shall not assume, undertake or accept any duties, responsibilities,
obligations or Liabilities of Seller (whether existing now or at the Closing or
that may arise in the future) with respect to:
(i) any Liabilities of Seller, the General Partner and their
Affiliates relating to the ownership or operation of the Assets or the Business
on or prior to the Closing Date;
(ii) any Liabilities of Seller, the General Partner and their
Affiliates relating to the ownership or operation of the Excluded Assets and the
operations of the General Partner and its Affiliates other than the Business;
(iii) except as otherwise provided herein with respect to Approved
Prepaid Expenses, all accounts payable for services rendered or goods supplied
on or prior to the Closing Date relating to the Business;
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<PAGE>
(iv) any Environmental Liabilities relating to the operation of the
Business by Seller arising on or before the Closing Date;
(v) Liabilities and obligations under Contracts that are not
Transferred Contracts including Liabilities under the Management Agreement;
(vi) Liabilities and obligations (A) to be performed at or prior to
the Closing under the Transferred Contracts, (B) under Transferred Contracts
which are based on or related to the revenues or other results of operations of
the Business during its 1996 season ("Percentage Payments"), whether payable
prior to, on or after the Closing Date or (C) arising out of a breach or default
by Seller or the General Partner at or prior to the Closing (including any event
occurring at or prior to the Closing that with the passage of time or giving of
notice, or both, would become a breach or default) under any Transferred
Contract;
(vii) Liabilities and obligations with respect to any Claims, whether
existing on the date hereof or arising hereafter, arising out of ownership of
the Assets or the operation of the Business on or prior to the Closing;
(viii) except as otherwise provided in this Agreement, Liabilities and
obligations to persons employed in the Business at any time prior to the Closing
(or any of such employee's beneficiaries, heirs or assignees) arising out of
such employee's employment in the Business prior to the Closing, including
accrued vacation liabilities with respect to the period ending on the Closing
Date and including all of the 1996 Bonuses, but Buyer does assume all severance
liabilities payable after the Closing Date for Transferred Employees;
(ix) Liabilities and obligations with respect to any federal, state,
local or foreign income, profits, franchise, sales or similar Tax relating to
the ownership of the Assets or the conduct of the Business on or prior to the
Closing, other than applicable sales Taxes imposed against the Purchase Price of
the Assets arising out of the Contemplated Transactions;
(x) any Liabilities in respect of any Debt of the Seller, other than
the Assumed Debt;
(xi) Liabilities and obligations arising out of or based upon any
matters disclosed on Schedules 2.12 or 2.19 hereto; and
(xii) Liabilities under the Centennial Park Agreement in excess of the
Maximum Amount,
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all such duties, responsibilities, obligations or liabilities described in this
Section 1.2(b) being referred to herein as "Retained Liabilities."
As used herein, "Environmental Liabilities" means any Liabilities,
obligations, responsibilities, obligations to conduct remedial actions, losses,
damages, punitive damages, consequential damages, costs and expenses (including,
without limitation, all reasonable fees, disbursements and expenses of counsel,
expert and consulting fees and costs of investigations and feasibility studies),
fines, penalties, and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present, or future, resulting from any
claim or demand by any person, whether based in contract, tort, implied or
express warranty, strict liability, common law, criminal or civil statute,
including any Environmental Law, arising from environmental, health or safety
conditions due to operation of the Business by the Seller or the manufacture,
refining, storage, disposal or treatment of Hazardous Substances by or on behalf
of Seller (but not any predecessor in interest), in each case, on or prior to
the Closing Date.
SECTION 1.3 Purchase Price. (a) The purchase price for the Assets
(including the Inventory) shall be Sixty-Two Million, Five Hundred Thousand
Dollars ($62,500,000) (the "Purchase Price").
(b) The Purchase Price is payable as follows:
(i) at the Closing, Buyer and/or Premier shall assume the outstanding
principal amount of, plus accrued interest to, the Closing in respect of the BNP
Debt and the City Debt and secure the releases or unconditional assurances of
releases of guaranties and collateral therefor given by Arnold S. Gurtler,
Chilcott Entertainment Company and Hensel Phelps Construction Co. (the "Assumed
Debt");
(ii) at the Closing, Buyer will repay in full the amount of
outstanding principal plus accrued interest necessary to secure at the Closing
full satisfaction in respect of the HP Note and the Total Note (the "Retired
Debt");
(iii) at the Closing, Buyer will deliver to Seller an amount (the "Net
Proceeds") (in immediately available funds or by delivery of shares of Premier
Stock as provided in Section 1.3(d)) equal to the Purchase Price, minus the sum
of (1) the amount of the Assumed Debt as provided in clause (i) above, and (2)
the total amount paid to retire the Retired Debt as provided in clause (ii)
above.
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(c) Notwithstanding the provisions of Section 1.3(b) above, if BNP and/or
the City shall fail to consent to the assumption by Buyer of the BNP Debt or the
City Debt, as the case may be, or if Buyer so determines in its discretion, at
the Closing Buyer, in lieu of assuming such Debt, shall repay in full the
outstanding principal amount at, and accrued interest to, the Closing in respect
of such Debt at a price equal to the amount necessary to secure the full
satisfaction thereof. In such event, the term "Assumed Debt" shall thereupon
include only the Debt of Seller, if any, actually assumed by Buyer at Closing
and the term "Retired Debt" shall mean the Debt of Seller actually repaid by
Buyer out of the Purchase Price at the Closing.
(d) Fourteen days prior to the scheduled Closing Date referred to in
Section 1.5 below, the General Partner will execute and deliver to Buyer a
certificate setting forth (1) the percentage share (the "Percentage Share") in
the Net Proceeds of each partner of Seller (an "Electing Partner") who has
elected (the "Election") to receive all or a portion of its Percentage Share of
the Net Proceeds in shares of Premier Stock, and the portion thereof elected to
be so received. Upon delivery of such certificate, the Election by each Electing
Partner shall become irrevocable. Shares of Premier Stock delivered at the
Closing in payment of Net Proceeds (the "Transaction Shares") will be valued at
the Average Closing Price, free and clear of all commission obligations or
transaction fees or stamps. No fractional shares of Premier Stock will be issued
pursuant to the Election, and the number of Transaction Shares issuable to any
Electing Partner shall be rounded down to the nearest number of whole shares of
Premier Stock. The parties acknowledge and agree that the Transaction Shares are
being issued pursuant to the exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") provided in Section
4(2) thereof and constitute restricted securities within the meaning of the
Securities Act. The Electing Partners may not transfer the Transaction Shares
absent compliance with the provisions of the Securities Act and applicable state
securities laws and all stock certificates evidencing the Transaction Shares
shall bear a legend to such effect. At the Closing, Premier and each Electing
Partner shall enter into the Registration Rights Agreement. The Registration
Rights Agreement provides that Premier will file a Registration Statement on
Form S-3 relating to the Transaction Shares no later than the business day
following the Closing Date, will pay all costs in respect thereto (other than
fees and expenses of counsel to any Electing Partner and discounts, fees or
commissions upon resale of the Transaction Shares) and will use its reasonable
best efforts to have the Registration Statement declared effective as soon as
practicable following the filing thereof.
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SECTION 1.4 Allocation of the Purchase Price. The Purchase Price shall be
allocated among the Assets and the covenant contained in Section 4.9 hereof in
the manner set forth on Schedule 1.4 for all purposes, and each of the parties
shall make all appropriate tax and other filings on a basis consistent with such
allocation. The parties shall exchange drafts of any information returns
required by Section 1060 of the Code, and all similar state statutes, ten days
prior to filing any such return.
SECTION 1.5 Closing. Subject to the terms and conditions of this Agreement,
the sale and purchase of the Assets contemplated hereby (the "Closing") shall
take place at 10:00 a.m., local time, at the offices of Ireland, Stapleton,
Pryor & Pascoe P.C., 1675 Broadway, Suite 2600, Denver Colorado 80202 on October
31, 1996 (the "Closing Date"), or if on such date the conditions specified in
Article V shall not have been satisfied or waived (other than conditions
requiring the delivery of the Purchase Price, the Assets or certificate or other
instruments and documents, excluding the document referred to in Section
5.3(j)), a date selected by Buyer not later than ten business days following
such satisfaction or waiver, provided, however, that, if the Closing has not
occurred by October 31, 1996 and on that date the conditions specified in
Section 5.1(b) and (c) shall have been satisfied and the Seller is ready,
willing and able to satisfy the conditions to be performed by Seller specified
in Section 5.3 (other than subparagraphs (e) and (h) thereof), the Purchase
Price will be increased to the extent necessary to reimburse Seller for all net
costs and expenses paid by Seller and reasonably approved by Buyer, including
without limitation interest on the Seller's Debt which accrues during the period
of the delay in closing, incurred in or for the Business between October 31,
1996 and the actual Closing Date. Seller shall deliver to Buyer prior to Closing
evidence, reasonably acceptable to Buyer, of such costs and expenses.
ARTICLE II
REPRESENTATIONS, WARRANTIES OF SELLER AND PARTNERS
Seller and the General Partner (and Limited Partner, but only as to those
provisions below specifically applicable to it) represent, warrant to Buyer and
Premier as set forth below. "Material" in the context of an adverse change,
shall mean an adverse effect which could reasonably be expected to result in
losses of more than $250,000.
SECTION 2.1 Authority Relative to this Agreement. Seller, General Partner
and Limited Partner have full power, capacity and authority to execute and
deliver this Agreement and each other Transaction Document to which each is or,
at the
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Closing, will be a party and to consummate the transactions contemplated hereby
and thereby (the "Contemplated Transactions"). The execution and delivery of
this Agreement and the consummation of the Contemplated Transactions to which
Seller, General Partner or Limited Partner is or, at the Closing, will be a
party have been duly and validly authorized by Seller and such Partner, and no
other proceedings on the part of Seller or such Partner (or any other person)
are necessary to authorize the execution and delivery by Seller or such Partner
of this Agreement or the consummation of the Contemplated Transactions to which
Seller or such Partner is or, at the Closing, will be a party. This Agreement
has been and, at the Closing, the other Transaction Documents to which Seller or
any Partner is a party will have been, duly and validly executed and delivered
by Seller and such Partner, and (assuming the valid execution and delivery
thereof by the other parties thereto) constitute or will at the Closing
constitute, as the case may be, the legal, valid and binding agreements of
Seller and such Partner enforceable against Seller or such Partner in accordance
with their respective terms except as such obligations and their enforceability
may be limited by applicable bankruptcy and other similar Laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies is subject to the discretion of the court before which any
proceeding therefor may be brought (whether at law or in equity). Seller and the
Partners represent and warrant to Buyer that the Partners, and other partners of
Seller who have consented to the Contemplated Transactions, constitute, and at
the Closing will constitute, the General Partner and a Majority of Unaffiliated
Limited Partners (as such term is defined in the Limited Partnership Agreement).
SECTION 2.2 No Conflicts; Consents. The execution, delivery and performance
by Seller and each Partner of this Agreement and each other Transaction Document
to which each is or will be a party and the consummation of the Contemplated
Transactions do not and will not (i) violate any provision of the Limited
Partnership Agreement (or certificate of incorporation, by-laws or other
comparable instruments) of Seller or any corporate Partner; (ii) require Seller,
any Partner or any Affiliate thereof to obtain any consent, approval or action
of or waiver from, or make any filing with, or give any notice to, any
Governmental Body or any other person, except for compliance with the HSR Act
and except the "Seller Required Consents" as set forth on Schedule 2.2; (iii) if
Seller Required Consents are obtained prior to Closing, violate, conflict with
or result in a breach or default under (after the giving of notice or the
passage of time or both), or permit the termination of, any Contract of a type
required to be listed on Schedule 2.10 to which Seller or any Partner is a party
or by which it or its assets may be bound or subject, or result in the creation
of any Lien upon the Assets pursuant to the terms of any such Contract;
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(iv) if Seller Required Consents are obtained prior to Closing, violate any Law
or Order of any Governmental Body against, or binding upon, Seller, any Partner
or upon the Assets or the Business; or (v) if Seller Required Consents are
obtained prior to Closing, violate or result in the revocation or suspension of
any Permit. Seller and General Partner covenant to Buyer that the Seller
Required Consents shall include the consent by all parties thereto to the
assignment to Buyer of Seller's rights under the Allocation Agreement.
SECTION 2.3 Partnership Existence and Power. Seller is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Colorado, and has all requisite power and all material Permits
required to carry on the Business as now conducted. Except as set forth on
Schedule 2.3, Seller does not own any equity interest or equity investment in
any other person.
SECTION 2.4 Formation Documents. Seller and General Partner have heretofore
delivered to Buyer a true and complete copy (or an accurate written summary if
the applicable agreement is not written) of the Limited Partnership Agreement of
Seller as in effect on the date hereof and all other Contracts between Seller
and any partner of Seller.
SECTION 2.5 Financial Information. (a) Seller has previously furnished to
Buyer true and complete copies of (i) Seller's audited financial statements at
and for the year ended December 31, 1995 and the period ended December 31, 1994
(the "Annual Statements"), (ii) Seller's unaudited financial statements at and
for each calendar month of 1996 through August 31, 1996 (the "Interim
Statements"), and (iii) all management letters, audit letters and attorney audit
response letters issued in connection with Seller's audited financial statements
since the inception of Seller. To Seller's best knowledge, the Annual Statements
have been prepared in accordance with GAAP consistently applied as set forth in
the notes thereto and were audited by Ernst & Young LLP. Except as set forth in
Schedule 2.5, to Seller's best knowledge, each Annual Statement: (i) presents
fairly the financial position of Seller as of its date, and its earnings,
changes in aggregate partners' capital and cash flow for the periods then ended;
(ii) fully sets forth all assets and Liabilities of Seller existing as of its
date which, under GAAP, should be set forth therein; (iii) sets forth the items
of income and expense of Seller which should appear therein under GAAP. Except
as set forth in Schedule 2.5, to Seller's best knowledge, each Interim Statement
fairly presents in all material respects the earnings of Seller for the periods
then ended.
(b) Schedule 2.5 sets forth the attendance (annually and by month) at the
Park included in the Business
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during 1995 and each calendar month of 1996 ending prior to the date hereof, and
by week for each full week in 1996 prior to the date hereof. Such information is
accurate to within a margin of error of five percent (5%) or less for each of
1995 and 1996.
SECTION 2.6 Liabilities. Except as and to the extent reflected in the
audited balance sheet of Seller ("the Latest Balance Sheet") at December 31,
1995 ("the Latest Balance Sheet Date") referred to in Section 2.5, Seller did
not have, as of the Latest Balance Sheet Date, any Liabilities or obligations
required under GAAP to be reflected on balance sheet (other than obligations of
continued performance under Contracts and other commitments and arrangements
entered into in the ordinary course of the Business and other than contingent
liabilities for injuries to third parties or employees); and except as described
in Schedule 2.6 hereto, Seller has not incurred any Liabilities since the Latest
Balance Sheet Date except (i) current Liabilities for trade or business
obligations incurred in the ordinary course of the Business, (ii) Liabilities
reflected on any balance sheet included in the Interim Statements delivered to
Buyer prior to the date hereof, and (iii) contingent liabilities for injuries to
third parties or employees. Schedule 2.6 also contains a true and correct
listing as of the date of this Agreement of the principal of and regularly
scheduled accrued interest on the Assumed Debt and the Retired Debt.
SECTION 2.7 Inventory. Schedule 2.7 sets forth a list of Inventory by
category as of the date hereof, and the on-hand dollar amount at cost and for
the 1996 summer operating season usage for such Inventory, that is true and
complete in all material respects.
SECTION 2.8 Absence of Certain Changes. Except as disclosed in the Interim
Statements or in the other Schedules attached hereto, since the Latest Balance
Sheet Date, except as disclosed in Schedule 2.8, the Business has been conducted
in the ordinary course, and there has not been:
(a) Any material adverse change in the Assets or prospects of the
Business, or any event, occurrence or circumstance that could reasonably be
expected to cause such a material adverse change.
(b) Any material transaction or Contract with respect to the purchase,
acquisition, lease, disposition, or transfer of any assets used in the Business
or any capital expenditure relating to the Business (in each case, other than as
disclosed on any Interim Statement delivered to Buyer prior to the date of this
Agreement or transactions or Contracts entered into in the ordinary course of
the Business).
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(c) Any change in the method of accounting or accounting practice by
Seller.
SECTION 2.9 The Assets. (a) Schedule 2.9 sets forth a complete list and
description of the Real Property. Seller has good, marketable and insurable
(subject only to standard ALTA exceptions) title to the Real Property, free and
clear of all Liens of any nature whatsoever, other than as shown on Schedule 2.9
(collectively, "Permitted Liens"). Seller has made available to Buyer for its
inspection and copying, with respect to such Real Property, all title insurance
policies, appraisal reports, surveys and environmental reports held or
controlled by Seller. Except as disclosed on Schedule 2.9, (i) neither Seller
nor General Partner has actual knowledge of any structural or other latent
defect in the Improvements that could reasonably be expected to result in a
material adverse affect on the Business, and (ii) no person, other than Seller,
has any right to occupy or possess any portion of the Real Property.
(b) Seller has good and marketable title to (or valid leasehold
interest in) all Equipment used in the Business, free and clear of all Liens
except Permitted Liens. The Equipment is, in the aggregate, adequate for the
operation of the Business as conducted since January 1, 1995. Schedule 2.9
contains a list and description of all Equipment with a book value (before
depreciation) of $100,000 or more; indicates the Equipment listed thereon that
is leased; and describes the anticipated maintenance schedule of the major items
of Equipment in the ordinary course of business.
(c) Seller has good and marketable title to the Assets (other than the
Real Property and Equipment) free and clear of any Liens other than Permitted
Liens.
SECTION 2.10 Contracts. (a) Schedule 2.10 sets forth an accurate and
complete list of all Contracts relating to or affecting the Business to which
Seller is a party or by which Seller or its assets are bound or subject, except
for those Contracts with persons who are not Affiliates of the Seller or any
Partner relating solely to the purchase or sale of property (other than the Real
Property) or services by or on behalf of Seller in the ordinary course of the
Business which (i) require Seller to make or receive payments not in excess of
$40,000 and (ii) have a remaining term of less than twelve months on the date of
this Agreement or are terminable by Seller without penalty during such period.
True and correct copies of all written Contracts listed on such Schedule and
summaries of the material provisions of all oral Contracts so listed have been
made available to Buyer for its inspection and copying.
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(b) Except as described on Schedule 2.10, all Contracts listed thereon
are valid, subsisting, in full force and effect and binding upon Seller and, to
the knowledge of Seller, the other parties thereto in accordance with their
terms, and Seller is not in default (or alleged default) under any such Contract
in any material respect, nor, to the knowledge of Seller is any other party
thereto in default thereunder in any material respect, nor does any condition
exist that with notice or the lapse of time or both would constitute a material
default (or give rise to a termination right) thereunder. To the knowledge of
Seller none of the other parties to any Transferred Contract intends to
terminate or materially alter the provisions thereof by reason of the
Contemplated Transactions or otherwise. Since the Latest Balance Sheet Date,
except as described on Schedule 2.10, Seller has not waived any material right
under any Transferred Contract, materially amended or extended beyond December
31, 1996 any such Transferred Contract or terminated or failed to renew (or
received notice of termination or failure to renew with respect to) any such
Transferred Contract.
SECTION 2.11 Intellectual Property. Schedule 2.11 sets forth all
Intellectual Property Rights filed with or issued by any Governmental Body and a
list of each material Contract relating thereto. Seller has made available to
Buyer true and correct copies of all registrations and applications with respect
thereto for Buyer's inspection and copying. The Contemplated Transactions will
not have an adverse effect on the right, title and interest of Buyer as of the
Closing Date in and to the Intellectual Property Rights. To the knowledge of
Seller, the Intellectual Property Rights do not infringe on or conflict with the
rights or intellectual property of third parties.
SECTION 2.12 Claims and Proceedings. Except as set forth on Schedule 2.12,
there are no outstanding Orders of any Governmental Body relating to or
affecting the Business or the Assets. Except as set forth on Schedule 2.12,
there are no actions, suits, claims or counterclaims or legal, administrative or
arbitral proceedings or investigations (collectively, "Claims") (whether or not
the defense thereof or Liabilities in respect thereof are covered by insurance),
pending or threatened on the date hereof, against or involving Seller or the
Assets relating to or affecting the Business, involving claims for either
equitable relief or monetary damages in excess of $100,000. Except as set forth
on Schedule 2.12, at the Closing there will be no such Claims pending or
threatened, other than Claims that, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the Condition of the
Business. Except as set forth on Schedule 2.12, to the knowledge of Seller, on
the date hereof, there is no fact, event or circumstances that Seller reasonably
believes would give rise to any Claim of the type specified in the first
sentence of
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this Section. As of the Closing, there will exist no such fact, event or
circumstance known to Seller that would give rise to any Claim that, if pending
or threatened on the Closing Date, could reasonably be expected to have a
material adverse effect on the Condition of the Business.
SECTION 2.13 Tax Matters. Except as disclosed on Schedule 2.13, all Tax and
Information Returns required to be filed in respect of the Business by Seller on
or before the Closing Date have been or shall be timely filed and all Taxes
which are due or which may be claimed to be due have been or shall be paid. All
Taxes of Seller attributable to periods ending on or before the Closing Date
which are not yet due have been adequately provided for. As of the time of
filing, such Tax Returns correctly reflected (and, as to any Tax Returns not
filed as of the date hereof, will correctly reflect) the material facts
regarding the income, Business, Assets, operations, activities and status of
Seller. There are no Tax Liens upon any Assets except for Liens for current
Taxes not yet due and payable. All amounts required to be withheld by Seller
from employees of the Business for income Taxes, social security and all other
payroll Taxes have been collected and withheld, and either paid to the
respective Governmental Bodies, set aside in accounts for such purpose, or have
been or will be accrued, reserved against and entered upon the books and records
of Seller. Except for sales Taxes which result from the consummation of the
Contemplated Transactions, Seller has collected and remitted to the appropriate
Tax Authority all sales and use or similar Taxes required to have been collected
on or prior to the Closing Date and has been furnished properly completed
exemption certificates for all exempt transactions. Seller has maintained all
records, supporting documents and exemption certificates with respect to sales
Taxes required by law. Neither Seller nor any Partner is a party to or has
received any notice with respect to any proposed or pending examination,
investigation, audit, action or Claim by any Tax Authority relating to Taxes in
respect of the Business, nor is party to any dispute or threatened dispute with
respect thereto and no Claim for assessment or collection of Taxes has been made
upon Seller, General Partner or any Partner. Schedule 2.13 includes a
description of all such examinations, investigations, audits, actions or Claims
relating to the Business since the inception of Seller. Seller is not a "foreign
person" within the meaning of section 1445 of the Code and, prior to the
Closing, Seller will furnish Buyer with an affidavit that satisfies the
requirements of section 1445 (b) (2) of the Code. Seller is not and has never
been a member of or included in any consolidated, combined or unitary group for
purposes of filing Tax Returns or paying Taxes at any time. Seller has no
Liability for Taxes of any other person under Treasury Regulation section
1.1502-6 (or any similar provision of state or foreign law), or
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as a transferee of such person, or under any other provision of Law or Tax
sharing, Tax indemnity or similar Contract.
SECTION 2.14 Employee Benefits Plans. (a) Except as set forth on Schedule
2.14, neither Seller nor the Business, nor any portion of the Business (all of
the above hereinafter individually and collectively called the "Company"), nor
any other company or entity which together with the Company constitutes a member
of the Company's "controlled group" or "affiliated service group" (within the
meaning of Sections 4001(a)(14) and/or (b) of ERISA and/or Sections 414(b), (c),
(m) or (o) of the Code (such group or groups hereinafter referred to
individually and collectively as the "Group")), has any present or future
obligation to contribute to or make payment under any employee benefit plan (as
defined in Section 3(3) of ERISA) (the "Employee Benefit Plan(s)"), or is
obligated to contribute to any Employee Benefit Plan subject to Title IV of
ERISA. No Company and no member of the Group has completely or partially
withdrawn from any "multiemployer plan" within the meaning of Section 3(37) of
ERISA.
(b) In addition, except as set forth in Schedule 2.14 hereof, (i)
there have been no "prohibited transactions" within the meaning of Section 406
of ERISA or Section 4975 of the Code with respect to any of the Employee Benefit
Plans; (ii) no Liability has been or is expected to be incurred by the Company
or any member of the Group under Title IV of ERISA with respect to any Employee
Benefit Plan currently or formerly maintained by any of them; (iii) any and all
amounts which the Company or any member of the Group are required to pay as
contributions or otherwise to, or with respect to the Employee Benefit Plans
have been timely made; (iv) no Employee Benefit Plan has incurred any
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Code), whether or not waived, and neither Company nor any member of
the Group has provided, or is required to provide, security to any Employee
Benefit Plan which is subject to Title IV of ERISA or otherwise; (v) the current
value of all "benefit liabilities" within the meaning of Section 4001(a)(16) of
ERISA under each Employee Benefit Plan which is subject to Title IV of ERISA or
otherwise, does not exceed the current value of the assets of such Employee
Benefit Plan allocable to such benefit liabilities; (vi) each of the Employee
Benefit Plans has been operated and administered in accordance with all
applicable Laws; (vii) each of the Employee Benefit Plans which is intended to
be "qualified" within the meaning of Sections 401(a) and 501(a) of the Code has
been determined by the IRS to be so qualified and continues to be so qualified;
(viii) there are no pending, threatened or anticipated Claims involving any of
the Employee Benefit Plans; (ix) the Company and the Group have not incurred and
do not expect to incur any withdrawal liability with respect to a multiemployer
plan under Subtitle E
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of Title IV of ERISA; (x) no notice of a "reportable event" within the meaning
of Section 4043 of ERISA has been required to be filed with respect to any
Employee Benefit Plan; (ix) neither the Company nor any member of the Group is a
party to, or participates in, or has any Liability or contingent Liability with
respect to any multiemployer plan; (xii) neither the execution and delivery of
this Agreement nor the consummation of the Contemplated Transactions will
accelerate benefits or any payments under any Employee Benefit Plan; and (xiii)
neither the Company nor any member of the Group has any commitment to create any
additional Employee Benefit Plan, or to amend any Employee Benefit Plan so as to
increase benefits thereunder.
(c) A true and correct copy of each of the Employee Benefit Plans
covering current, former or retired employees, officers, directors and
consultants of the Company and the Group (the "Company Plans") (and all
amendments thereto, whether currently effective or to become effective at a
later date) listed on Schedule 2.14 and all contracts relating thereto, or to
the funding thereof (including, without limitation, all trust agreements,
insurance contracts, investment management agreements, subscription and
participation agreements, administration and recordkeeping agreements) have been
provided to Buyer. No member of the Group is in default in any material respect
under any Company Plan. A true and correct copy of the most recent annual
report, actuarial report, summary plan description, and IRS determination letter
and/or ruling with respect to each such Company Plan,if any, and a current
schedule of assets (and the fair market value thereof assuming liquidation of
any asset which is not readily tradeable) held with respect to any funded
Company Plan has been made available to Buyer for inspection and copying.
SECTION 2.15 Employee-Related Matters. (a) Schedule 2.15 contains a true
and correct list of all officers and full-time employees of the Business and all
consultants thereto who regularly provide services at the Park or Seller's
administration offices, their job descriptions, and a description of any
Contract relating thereto, and a description of the rate and nature of all
compensation payable by or on behalf of Seller to each such person. Schedule
2.15 also contains a description of all existing severance, accrued vacation
policies or retiree benefits of any current or former officer, employee or
consultant of the Business (to the extent not included on Schedule 2.14). Except
as set forth on such Schedule, the employment or consulting arrangement of all
such persons and all part-time employees of the Business is terminable at will.
(b) Except as set forth in Schedule 2.15, (i) Seller is not a party to
any Contract with any labor organization or other representative of the
employees of the Business;
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(ii) there is no unfair labor practice charge or complaint pending or, to the
knowledge of Seller, threatened against Seller relating to any employee of the
Business; (iii) Seller has not experienced any labor strike, slowdown, work
stoppage or similar material labor controversy relating to the Business; (iv) no
representation question has been raised respecting any of the employees of the
Business, nor, to the knowledge of Seller, are there any campaigns being
conducted to solicit authorization from such employees to be represented by any
labor organization; (v) no Claim before any Governmental Body brought by or on
behalf of any employee, prospective employee, former employee, retiree, labor
organization, other representative of the employees of the Business or any
Governmental Body, is pending or, to the knowledge of Seller threatened against
Seller; (vi) Seller is not a party to, or otherwise bound by, any Order relating
to the employees of the Business or employment practices; and (vii) except with
respect to ongoing disputes of a routine nature involving immaterial amounts,
all wages, salaries, commissions, bonuses, benefits and other compensation due
and payable to such employees have been paid in full.
SECTION 2.16 Insurance. Schedule 2.16 sets forth a list of all insurance
policies, fidelity and surety bonds and fiduciary liability policies ("the
Insurance Policies") purchased by Seller and covering the Assets, the Business,
and employees or agents of the Business (including, to the extent applicable,
officers and directors of the General Partner) and true and complete copies of
all such Insurance Policies have been delivered to Buyer. Schedule 2.16 also
sets forth a true and complete list of Claims relating to the Business made in
respect of Insurance Policies (excluding claims settled under Seller's $5,000
self-insured retention) since the inception of Seller. True and correct copies
of all loss runs with respect to such period have been delivered to Buyer. There
is no Claim by Seller or the General Partner pending under any of such Insurance
Policies as to which coverage has been questioned, denied or disputed by the
underwriters of such Insurance Policies or any requirement by any insurer to
perform work which has not been satisfied. All premiums due under all Insurance
Policies have been paid and Seller is otherwise in compliance in all material
respects with the terms and conditions of all such Insurance Policies. All
Insurance Policies are in full force and effect.
SECTION 2.17 Compliance with Laws. Seller is not in violation in any
material respect of any material order, judgment, injunction, award, citation,
decree, consent decree or writ (collectively, "Orders"), or to its best
knowledge, any material law, statute, code, ordinance, rule, regulation or other
requirement, including any Environmental Laws (collectively, "Laws"), of any
government or political subdivision thereof, whether federal, state, local or
foreign, or any agency or
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instrumentality of any such government or political subdivision, or any court or
arbitrator (collectively, "Governmental Bodies") relating to or affecting the
Assets or the Business. Schedule 2.17 contains a list of, and Seller shall
promptly deliver to Buyer a true and correct copy of all correspondence from any
Governmental Body alleging any violation of or noncompliance with any such law.
SECTION 2.18 Permits. Seller has obtained or caused to be obtained for the
benefit of Seller or the Business, all Permits, and have made all required
registrations and filings with any Governmental Body that are material to the
conduct of the Business. All material Permits are listed on Schedule 2.18 and
are in full force and effect; no material violations are or have been recorded
in respect of any Permit; and, except as disclosed, no proceeding is pending or,
to the knowledge of Seller, threatened to revoke or limit any Permit. Schedule
2.18 indicates those Permits that Seller believes may be transferable to Buyer.
SECTION 2.19 Environmental Matters. Seller has made available to Buyer for
inspection and copying all material information in its possession or under its
control relating to the environmental condition of the Property. Seller has not
received any written notice of any alleged violation or pending or threatened
Regulatory Action with respect to any Environmental Law.
SECTION 2.20 Finders; Fees. Except as set forth in Schedule 2.20, there is
no investment banker, broker, finder or other intermediary which has been
retained by or is authorized to act on behalf of Seller who might be entitled to
any fee or commission from Seller upon consummation of the Contemplated
Transactions. All fees and commissions described in Schedule 2.20 will have been
paid in full at or prior to the Closing.
SECTION 2.21 Ability to Conduct Business. As of the Closing, the Assets,
other than working capital, will be sufficient and adequate to permit the
continued conduct of the Business substantially as it has been conducted since
January 1, 1995 and, assuming all Seller Required Consents are obtained, the
consummation of the Contemplated Transactions hereby will enable Buyer to
conduct the Business substantially as it has been conducted since that date.
SECTION 2.22 Transaction Shares. Prior to Closing, the Electing Partners
must each, as to themselves, represent and warrant to Buyer that the Transaction
Shares are being acquired by the Electing Partners for their own account and not
with a view to the distribution, resale or other transfer thereof,
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except in compliance with the Securities Act and applicable state securities
laws. Each Electing Partner must be an "accredited investor" as such term is
defined in Regulation D promulgated under the Securities Act and, upon request
of Buyer, will provide it with reasonable evidence to that effect. As of the
Election Date, each Electing Partner shall have (i) reviewed carefully the
Premier Reports, (ii) such knowledge and experience in financial, tax and
business matters so as to enable it to make an informal investment decision with
respect to the Transaction Shares and (ii) overall commitments to investments
which are not readily marketable as are reasonable in relation to such Electing
Partner's net worth. The parties agree that the representations and warranties
in this Section 2.23 will be made solely by Electing Partners on a several basis
and, by electing to receive Transaction Shares, each Electing Partner who is not
a Partner shall be deemed to have made to Premier the representation and
warranty set forth in this Section.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PREMIER AND BUYER
Premier and Buyer, jointly and severally, represent and warrant to Seller
that:
SECTION 3.1 Authority Relative to This Agreement. Each of Premier and Buyer
has full power and authority to execute and deliver this Agreement and each
other Transaction Document to which it is or, at the Closing, will be a party
and to consummate the Contemplated Transactions. The execution and delivery of
this Agreement and the consummation of the Contemplated Transactions to which
Premier or Buyer is or, at the Closing, will be a party have been duly and
validly authorized and approved by the board of directors thereof and no other
corporate proceedings on the part of Premier or Buyer are necessary to authorize
the execution and delivery by Premier or Buyer of this Agreement or the
consummation of the Contemplated Transactions to which it is or, at the Closing,
will be a party. This Agreement has been and, at the Closing, the other
Transaction Documents to which Premier or Buyer is a party will have been duly
and validly executed and delivered by Premier and Buyer and (assuming the valid
execution and delivery thereof by the other parties thereto) constitutes or will
at the Closing constitute, as the case may be, the legal, valid and binding
agreement of Premier and Buyer, enforceable against Premier or Buyer in
accordance with their respective terms, except as such obligations and their
enforceability may be limited by applicable bankruptcy and other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought (whether at law or in
equity).
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SECTION 3.2 No Conflicts; Consents. The execution, delivery and performance
by Premier and Buyer of this Agreement and each other Transaction Document to
which each is or, at the Closing, will be a party and the consummation of the
Contemplated Transactions to which each is or, at the Closing, will be a party
do not and will not (i) violate any provision of the certificate of
incorporation or by-laws (or comparable instruments) of Premier or Buyer; (ii)
require Premier or Buyer to obtain any consent, approval or action of or waiver
from, or make any filing with, or give any notice to, any Governmental Body or
any other person, except for compliance with the HSR Act and except as set forth
in Schedule 3.2 (the "Buyer Required Consents"); (iii) if Buyer Required
Consents are obtained prior to the Closing, violate, conflict with or result in
the breach or default under (after the giving of notice or the passage of time);
or permit the termination of, any material Contract to which Premier or Buyer is
a party or by which Premier or Buyer or its assets may be bound or subject; or
(iv) if Buyer Required Consents are obtained prior to the Closing, violate any
Law or Order of any Governmental Body against, or binding upon, Premier or Buyer
or upon its assets or business.
SECTION 3.3 Corporate Existence and Power. Each of Premier and Buyer is a
corporation, duly organized, validly existing and in good standing under the
laws of its state of organization and has all requisite corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted. At the Closing, Buyer (or its
assignee) will be qualified to do business in the State of Colorado.
SECTION 3.4 Finders; Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Premier or Buyer who might be entitled to any fee or commission from Premier
or Buyer upon consummation of the Contemplated Transactions.
SECTION 3.5 Premier Reports. Premier shall promptly deliver to Seller and,
as and when applicable, to each partner of Seller who has expressed to Buyer an
interest in being an Electing Partner, true and correct copies of (a) Premier's
Prospectus, dated May 29, 1996, with respect to its offering of Premier Stock
and (b) Premier's Quarterly Report on Form 10-Q for the three and six month
periods ended June 30, 1996 (collectively, together with the Premier Filings and
disclosure statement, if any, provided to the Electing Partners pursuant to
Section 4.18, the "Premier Reports"). At the date of the Election and the
Closing, the Premier Reports, taken as a whole, will not contain an untrue
statement of material fact, nor omit to state a material fact necessary to make
the statements made therein not misleading.
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SECTION 3.6 Transaction Shares. The Transaction Shares have been duly
authorized by Premier and, when issued to Electing Partners at the Closing, will
have been duly issued and will be fully paid and non-assessable shares of
Premier Stock.
ARTICLE IV
COVENANTS AND AGREEMENTS
SECTION 4.1 Conduct of Business of Seller. (a) From the date hereof through
the Closing Date, the risk of loss of the Assets and of the Business remain with
Seller, which must therefore be able to conduct business in the ordinary course.
However, Seller acknowledges that Buyer has current rights and expectations
based on this Agreement. Therefore, Seller agrees:
(i) To conduct the operations of the Business prudently and according
to the ordinary and usual course of the Business, to use reasonable best efforts
to preserve intact the present business organization and structure, to use
reasonable best efforts to keep available the services of the present officers,
agents and full-time employees of the Business, to use reasonable best efforts
to preserve and maintain the Assets and the good will of the Business and to use
reasonable best efforts to preserve the relationships of Seller with customers
and suppliers, and others having business dealings with Seller in respect of the
Business.
(ii) To maintain in the ordinary course of the Business, in accordance
with all Contracts, the Real Property, Equipment, Inventory and other tangible
property in their present repair, order and condition, subject to ordinary wear
and tear.
(iii) Not to incur any Liability or enter into any Contract relating
to the Business, other than reasonable Contracts having a term of one year or
less and Liabilities incurred in a reasonable amount, in each case, in the
ordinary course of the Business. Before it makes any commitment to any Contracts
or incurs any Liabilities that, in the aggregate with all Contracts made and
Liabilities incurred from and after the date hereof, create obligations that
continue after the Closing Date in excess of Approved Prepaid Expenses plus
$50,000, Seller shall consult with Buyer and shall not make any such commitment
or incur any such Liability to which Buyer reasonably objects.
(iv) Not to undertake (nor permit to be undertaken) any of the actions
specified in Section 2.8.
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(b) From the date hereof through the Closing Date, Seller and General
Partner agree that Seller's affairs will be conducted in such a manner so that
the representations and warranties of Seller contained herein shall, insofar as
reasonably possible, continue to be true and correct on and as of the Closing
Date as if made on and as of the Closing Date.
(c) From the date hereof through the Closing Date, Seller will consult
with Buyer prior to any renewal, amendment, extension or termination of, waiver
of any material right under, or any failure to renew, any Transferred Contract
and will not take any such action if Buyer objects thereto in writing.
SECTION 4.2 Corporate Examinations and Investigations. Prior to the Closing
Date, Seller agrees that Buyer shall be entitled, through its directors,
officers, Affiliates, employees, attorneys, accountants, representatives,
lenders, consultants and other agents (collectively, "Representatives") to make
such investigation of the Assets, the Business and operations of Seller, and
such examination of the books and records of Seller, as Buyer reasonably deems
necessary. Any such investigation and examination shall be conducted at
reasonable times, under reasonable circumstances and upon reasonable notice and
shall reasonably take into account Seller's need to conduct on-going Business
operations, and Seller shall cooperate fully therein. In that connection, Seller
shall make available to the Representatives of Buyer during such period, without
however causing any unreasonable interruption in the operations of Seller all
such information and copies of such documents and records concerning the affairs
of Seller as such Representatives may reasonably request, shall permit the
Representatives of Buyer access to the Assets and all parts thereof, and shall
cause Seller's Representatives to cooperate reasonably in connection with such
review and examination. Prior to the Closing Date, Buyer may contact employees,
customers, suppliers, Contractors and others having business dealings with the
Business at such times and in such manner as is reasonably approved in advance
by Seller.
SECTION 4.3 Additional Financial Statements. Prior to the Closing Date, as
soon as available and in any event within thirty (30) calendar days after the
end of each monthly accounting period of Seller ending after the date of the
most recent Interim Statement, Seller shall furnish Buyer with an unaudited
financial statements of Seller for such month in form and substance comparable
to the Interim Statements and with such other financial or other information
routinely prepared by or on behalf of Seller or reasonably requested by Buyer.
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SECTION 4.4 Filings and Authorizations. Seller and Buyer, no later than
October 1, 1996, shall file or supply, or cause to be filed or supplied, all
notifications, reports and other information required to be filed or supplied
pursuant to the HSR Act in connection with the Contemplated Transactions and
which are required by Law to effectuate the consummation of the Contemplated
Transactions. Seller and the General Partner, on the one hand, and Buyer and
Premier, on the other, shall cooperate with each other in connection with such
filings and furnish each other with copies of such filings and any
correspondence received from any Governmental Body in connection therewith.
Seller and the General Partner, on the one hand, and Buyer and Premier, on the
other, as promptly as practicable, shall make, or cause to be made, all filings
and submissions under such Laws as are applicable to them or to their respective
Affiliates, as may be required for them to consummate the Contemplated
Transactions in accordance with the terms of this Agreement and shall furnish
copies thereof to the other party prior to such filing and shall not make any
such filing or submission to which Buyer or Seller, as the case may be,
reasonably objects in writing. All such filings shall comply in form and content
in all material respects with applicable Law.
SECTION 4.5 Efforts to Consummate. Subject to the terms and conditions
herein, each of Seller, the General Partner, Buyer and Premier, without further
payment or consideration, shall use good faith efforts to take or cause to be
taken all action and to do or cause to be done all things necessary, proper or
advisable under applicable Laws, Permits and Orders to consummate and make
effective, as soon as reasonably practicable, the Contemplated Transactions,
including, but not limited to, the obtaining of all Seller Required Consents and
Buyer Required Consents and Permits or consents of any third party, whether
private or governmental, required in connection with such party's performance of
such transactions and each party hereto shall cooperate with the other in all of
the foregoing.
SECTION 4.6 Negotiations With Others. From and after the date hereof unless
and until this Agreement shall have terminated in accordance with its terms,
Seller and the Partners agree that neither Seller, any Partner, nor any of
Seller's or Partner's Affiliates, officers, employees, shareholders or other
Representatives, will directly or indirectly (i) solicit, engage in discussions
or engage in negotiations with any person (other than Premier or any of its
Affiliates) with respect to an Acquisition Proposal; (ii) provide information to
any person (other than Premier or any of its Representatives) in connection with
an Acquisition Proposal; or (iii) enter into any transaction with any person
(other than Premier or any of its Affiliates) with respect to an Acquisition
Proposal. If Seller, any Partner or any Affiliate or Representative of any
thereof receives any
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offer or proposal to enter into discussions or negotiations relating to any of
the above, such party will immediately notify Buyer in writing as to the
identity of the offeror or the party making any such proposal and the specific
terms of such offer or proposal.
SECTION 4.7 Notices of Certain Events. Prior to the Closing Date, Seller,
on the one hand, and Buyer and Premier, on the other, shall promptly notify the
other of:
(a) any notice or other communication from any person alleging that
the consent of such person is required in order for Seller or Buyer to conclude
the Contemplated Transactions;
(b) any notice or other communication from any Governmental Body that
can reasonably be foreseen to adversely affect or delay timely conclusion of the
Contemplated Transactions; and
(c) any event, condition or circumstance occurring from the date
hereof through the Closing Date that would constitute a violation or breach of
any representation or warranty, whether made as of the date hereof or as of the
Closing Date, or that would constitute a violation or breach of any covenant of
any party contained in this Agreement.
SECTION 4.8 Public Announcements. Prior to the Closing Date, Seller and the
Partners, on the one hand, and Buyer and Premier, on the other, will consult and
coordinate with each other before issuing any press release or otherwise making
any planned public statement with respect to the Contemplated Transactions and,
unless required by applicable Law, will not issue any such release or make such
planned statement to which the Seller or Buyer reasonably objects. The initial
public announcement about this Agreement and the Contemplated Transactions may
only be made with the prior approval of Buyer and Seller, except as may be
required by applicable Law in which event Buyer and Seller shall have a
reasonable opportunity to review and comment upon (but not approve) any such
press release or public statement prior to its issuance.
SECTION 4.9 Covenant Not-to-Compete. During the period commencing on the
Closing Date and ending five years thereafter (the "Term"):
(a) In order to preserve the value of the Assets being sold to Buyer,
each of Seller and the Partners agrees that it will not, directly or indirectly,
as a partner, officer, employee, director, stockholder, proprietor, consultant,
representative, agent or otherwise become or be interested in, or
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associate with or render assistance to, any person when engaged in the
ownership, operation and/or management of any amusement park, theme park, water
park, video arcade or family amusement or entertainment center located within
the Territory. The foregoing provisions are not intended to include sporting
facilities such as arenas, ski areas or fishing or hunting preserves or
facilities that have as their primary source of revenue sales of food,
beverages, items at retail, and arts entertainment or educational facilities
such as movie theaters, stage theaters, museums and aquariums. The foregoing
provisions also shall not prohibit the ownership by any such person of not more
than two percent (2%) of any class of outstanding equity securities listed for
trading on a national securities exchange or publicly traded in the
over-the-counter market which engages in any of such businesses. For the
purposes of this Agreement, "Territory" shall mean any area within a 250 mile
radius of the Park.
(b) Each of Seller and the Partners agree that it will not, directly
or indirectly, during the Term, for its own benefit or for the benefit of any
other person solicit the professional services of any employee or exclusive
agent or exclusive consultant of Premier or any Affiliate of Premier or
otherwise interfere with the relationship between Premier or any Affiliate and
any of such persons.
(c) Prior to the Closing Date, neither Seller nor any Partner has
outside of the ordinary course of Seller's Business, and after the Closing,
neither Seller nor any Partner will, directly or indirectly, use, disclose or
make available to anyone (other than Premier and Buyer) any confidential
information concerning the ownership and/or operation of the Park (the
"Confidential Information"), except as required by law. The Confidential
Information includes, without limitation, the business practices, financial
information, customer and prospective customers names, leads and account
information, suppliers and prospective suppliers names, mailing lists, computer
programs, advertising campaigns (including, without limitation, displays,
drawings, memoranda, designs, styles or devices), employee names, compensation
and benefit information of Seller pertaining to the Park.
(d) The parties agree that a violation of the foregoing agreements not
to compete or disclose, or any provision thereof, will cause irreparable damage
to Buyer, and Buyer shall be entitled (without any requirement of posting a bond
or other security), in addition to any other rights and remedies which it may
have, at law or in equity, to an injunction enjoining and restraining Seller and
any Partner from doing or continuing to do any such act or any other violations
or threatened violations of this Section 4.9.
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(e) If one or more of the provisions contained in this Section 4.9 (or
any portion of any such provision) shall for any reason be finally held by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Section (or any portion of any such provision), but this
Section shall be construed as if such invalid, illegal or unenforceable
provision (or portion thereof) had not been contained in this Agreement. If, for
any reason, any of the restrictions or covenants contained in this Section 4.9
is finally held by a court of competent jurisdiction to cover a geographic area
or to be for a length of time that is not permitted by applicable Law, or in any
way construed to be too broad or to any extent invalid, such provision shall not
be determined to be null, void or of no effect, but to the extent it is or would
be valid or enforceable under applicable Law, it shall be construed and
interpreted to provide for a covenant having the maximum enforceable geographic
area, time period and other provisions (not greater than those contained in this
Section) as shall be valid and enforceable under such applicable Law.
SECTION 4.10 Expenses. Buyer and Seller shall each pay 50% of (i) the
filing fees incurred in connection with any filing under the HSR Act, (ii) the
premium for a title insurance policy on the Real Property (including
endorsements of the type and at the cost comparable to the title insurance
Seller presently owns with respect to the Real Property), and (iii) the cost of
the survey referred to in Section 5.3(f). Except as otherwise specifically
provided in this Agreement, Buyer, Seller and the Partners shall bear their
respective expenses, in each case, incurred in connection with the preparation,
execution and performance of this Agreement and the Contemplated Transactions,
including, without limitation, all fees and expenses of their respective
Representatives.
SECTION 4.11 Tax Matters. Seller shall provide Buyer with a clearance
certificate or similar document(s) that may be required by the Tax Authority of
any jurisdiction in order to relieve Buyer of any obligation to withhold any
portion of the Purchase Price. At least ten business days prior to filing of any
Tax or Information Return for the year ended December 31, 1996, Seller will
provide Buyer a copy thereof.
SECTION 4.12 Employee Matters. (a) As soon as possible prior to the Closing
Date, Buyer shall offer employment to such employees of the Business as it shall
determine in its sole discretion, which offer will include employee benefits
that are comparable to those offered by Premier or its Affiliates to their
comparable employees as of the Closing Date; provided, however, that any offer
of employment shall be contingent upon
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the Closing actually occurring. A brief written description of such benefits
offered by Premier or its Affiliates shall be provided to Seller within five
business days from the date hereof. All such employees who accept Buyer's offer
of employment will become employees of Buyer ("Transferred Employees") as of the
Closing Date.
(b) Seller and General Partner shall retain responsibility and
complete liability for all benefits accrued and vested by the Transferred
Employees through the Closing Date under the Company Plans and shall pay or
cause to be paid to each Transferred Employee (or at the request of Buyer, to
Buyer for the benefit of the Transferred Employee) the accrued benefit of such
Transferred Employee thereunder in accordance with the terms of such Company
Plans, excluding severance benefits, if any, that an employee may have been
entitled to were she or he not a Transferred Employee. No assets held in trust
in respect of any Company Plan shall be transferred to Buyer or any plan
maintained by Buyer.
(c) Seller shall bear the entire cost and expense of wages, salaries,
bonuses (including all bonuses based on or related to the results of operations
of the Business during its 1996 season, whether payable prior to, on or after
the Closing Date (the "1996 Bonuses"), severance obligations, worker's
compensation claims, and any other direct or indirect compensation or employee
benefits (in each case, whether arising under Company Plans, operation of Laws
or otherwise) of all employees of the Business for all periods ending on or
prior to the Closing Date, irrespective of the time at which any claims therefor
are made, except as provided in (b) above. For purposes hereof, an expense will
be deemed to be incurred when the services related thereto have been rendered
and a disability shall be deemed to have occurred on the date of the applicable
accident or trauma rather than the date upon which any determination is made
concerning the existence of the disability.
(d) No party intends this Section to create any rights or interests,
except as among Buyer, Premier, Seller and General Partner, and no present or
future employees thereof (or any dependents of such employees) will be treated
or deemed as third party beneficiaries in or under this Agreement.
SECTION 4.13 Certain Renewals. With respect to each Permit which may expire
prior to the Closing Date or within sixty days thereafter, Seller shall, at the
sole cost and expense of Buyer (i) timely file with the appropriate Governmental
Bodies applications for renewal of each such Permit (the "Applications"); (ii)
deliver to Buyer true and complete copies of such Applications; (iii) diligently
prosecute such
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Applications to conclusion; and (iv) cooperate fully with all Governmental
Bodies in the processing of such Applications.
SECTION 4.14 Collection of Accounts Receivable. From and after the Closing
Date, Buyer shall be solely responsible for collecting the accounts receivable
(excluding the claims described on Schedule 1.1(b)(viii)) of Seller existing on
the Closing Date (the "Receivables") and, except as provided herein, Seller
shall take no action to collect any such Receivables. Buyer shall give prompt
written notice to Seller of any amount collected in respect of any Receivable
and shall promptly remit such amount to Seller. Any amount received without
designation of the invoice to which it should be applied shall first be applied
to the Receivables due from such account debtor. Any amount received by Buyer
from any account debtor, which is designated by such account debtor as
applicable to a receivable other than a Receivable, shall be the property of
Buyer and shall be applied by Buyer to the balance then due and owing by such
account debtor to Buyer. With respect to any Receivable that is not collected
within 180 days following the Closing Date and as to which Buyer has not elected
to make payment to Seller of such Receivable on behalf of the account debtor,
Seller shall have the right, at its expense, to take legal action to collect
such Receivable.
SECTION 4.15 Transfer-related Taxes and Fees; Allocations. (a) Buyer and
Seller shall bear equally the payment of the Colorado documentary fee of $0.10
per $1,000 of value of Real Property and the recording fees for all conveyance
and Assumed Debt instruments to be recorded in connection with the Contemplated
Transactions in the office of the Clerk and Recorder of the City and County of
Denver. Seller shall be solely responsible for the payment of all release and
recording fees relating to the release of liens other than for Assumed Debt.
Buyer shall be solely responsible for the payment to Seller, as the collecting
agent for the applicable Governmental Bodies, of the sales Taxes upon the retail
sale of tangible personal property imposed by the State of Colorado, the City
and County of Denver, the Regional Transportation District, the Scientific and
Cultural Facilities District and the Metropolitan Stadium District upon the sale
of the Assets pursuant to this Agreement up to Two Million Two Hundred
Eighty-One Thousand Two Hundred Fifty Dollars ($2,281,250) of such Taxes and the
balance of such Taxes, if any, shall be borne by Seller. All other Colorado or
local Taxes or governmental fees, if any, arising out of the Contemplated
Transactions (other than income taxes) shall be born equally by Buyer and
Seller. Buyer and Seller shall cooperate in providing each other appropriate
resale exemption certificates and other appropriate Tax documentation.
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(b) Real estate taxes, personal property taxes, general and special
utility charges and other similar operating expenses relating to the Business
shall be apportioned at the Closing as of the Closing Date. In addition, at the
Closing, Buyer shall pay to Seller an amount equal to (i) the amount of cash
(other than cash delivered to the Limited Partner under Section 5.2(c)(ii)(5))
as of the Closing held by lenders under the Assumed Debt in respect of escrow
deposits, reserves, minimum balances or other retentions (including the
Accounts) and (ii) the amount of Approved Prepaid Expenses paid by Seller prior
to the Closing minus (iii) the amount of the Prepaid Deposits as of the Closing
Date. At the Closing, Buyer and Seller shall reimburse the other party, as
appropriate, for amounts payable pursuant to this Section 4.15.
SECTION 4.16 Payment of Creditors. Seller agrees to pay and discharge when
due all claims of creditors of Seller that may be asserted against Buyer except
with respect to the Assumed Liabilities.
SECTION 4.17 Access. After the Closing and from time to time, each party
hereto shall permit the other parties and their Representatives to have access
during regular business hours and upon reasonable notice, to inspect and copy
agreements, records, books and other documents that are included in or relate to
the Assets or the Business and identified with reasonable particularity,
wherever located, for the purposes of (i) preparing Tax Returns and financial
statements and responding to Tax audits, and (ii) prosecuting or defending any
Claim, which arises out of or relates to the Business or the Assets. Each party
shall cooperate fully with the other party in connection with the foregoing. If,
after the Closing, any party determines to destroy any agreements, records,
books or documents referred to above, it will give to the other party at least
two months' prior written notice thereof, and such other party shall have the
right during such two-month period upon reasonable notice and during regular
business hours to take possession of any such agreements, records, books or
documents.
SECTION 4.18 Premier Filings. During the period prior to the Closing Date,
Premier shall deliver to each Electing Partner, promptly after the filing
thereof, a true and correct copy of each report, information statement or other
document ("Premier Filings") filed by Premier with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended. Prior to the
date of the Election, Premier (i) will provide all partners of Seller with a
reasonable opportunity to ask questions and receive answers from Representatives
of Premier in connection with the Election, and (ii) may, in its discretion,
provide to each partner of Seller a disclosure statement containing such
information as Premier shall deem necessary to
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comply with the representation and warranty contained in the last sentence of
Section 3.5.
SECTION 4.19 Capital Improvements. During the period commencing on the
Closing Date and ending on the commencement of the Park's 2000 operating season,
Buyer and/or Premier will make additions to property, plant and equipment
(determined in accordance with GAAP used in the preparation of statements of
cash flow-investing activities) at the Park at least equal to $15,000,000.
Although Seller will have no continuing interest in the Park after the Closing,
Buyer acknowledges that Seller's willingness to sell the Assets to Buyer is in
part in reliance on this covenant of Buyer and/or Premier, and Buyer further
acknowledges that Seller will disclose this covenant to certain Governmental
Bodies in connection with obtaining releases, accommodations and forbearance.
Therefore, Buyer agrees that if it defaults under this obligation, Seller and/or
General Partner shall have the right to bring an action against Buyer for
specific performance.
SECTION 4.20 Season Passes. At Closing, Buyer shall provide to Seller one
non-transferable, lifetime pass to the Park for and issued in the name of each
person (not to exceed 62 persons) named on Schedule 4.20 hereto. Such pass shall
entitle the issuee and four (4) accompanying persons admission at no charge to
the Park during its regular summer operating season, access to all rides and
venues except for those rides and venues for which the general public is
required to pay a separate charge, and a discount of 20% off the regular (not
the sale or discounted) price of all retail merchandise (excluding food and
beverages) sold by Buyer at the Park. In addition, at Closing each person
identified on Schedule 4.20 shall receive five general admission tickets to the
Park for the 1997 regular summer season.
SECTION 4.21 Prepaid Expenses. Schedule 4.21 sets forth operating expenses
relating to activities after the Closing Date ("Prepaid Expenses") paid or
incurred by Seller prior to the date hereof. Within fourteen (14) days following
the date hereof, Seller shall prepare and deliver to Buyer an expenses schedule
setting forth anticipated Prepaid Expenses in respect of the Business for the
period commencing on the date hereof and ending on the Closing Date, which
expenses schedule Seller may update from time to time as necessary. Buyer shall
have the right, within three (3) days of receipt of the expenses schedule or any
modification thereof, to strike or reduce an item therefrom by giving notice
thereof to Seller, provided, however, that Buyer actions shall be made on a
reasonable basis disclosed to Seller. At Closing, Buyer shall reimburse Seller
for all Prepaid Expenses appearing on Schedule 4.21 or such approved expenses
schedule (as modified) ("Approved Prepaid Expenses")
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paid by Seller prior to Closing and shall assume all Approved Prepaid Expenses
incurred by Seller.
SECTION 4.22 Structuring. Seller acknowledges that Buyer may prior to
Closing propose an alternative structure for the Contemplated Transactions and
agrees that, unless in the reasonable opinion of Seller such alternative
adversely affects the rights and obligations of Seller or the partners of
Seller, the parties at or prior to Closing shall enter into such amendments
hereto or other instruments and documents as shall be required to effect such
alternative structure.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.1 Conditions to the Obligations of the Parties. The obligations
of Seller, Buyer and Premier to consummate the Contemplated Transactions are
subject to the satisfaction of the following conditions, which, in the case of
Section 5.1(c), may be waived by Premier (on behalf of itself or Buyer) and
Seller:
(a) HSR Act. Any applicable waiting period under the HSR Act relating
to the Contemplated Transactions shall have expired.
(b) No Injunction. No provision of any applicable Law and no Order
shall prohibit the consummation of the Contemplated Transactions.
(c) No Proceeding or Litigation. No Claim instituted by any person
(other than by Buyer, Seller, any partner of Seller or their respective
Affiliates), shall have been commenced or be pending against Seller, Buyer or
any of their respective Affiliates, officers or directors, which Claim seeks to
restrain, prevent, change or delay in any material respect the Contemplated
Transactions or seeks to challenge any of the material terms or provisions of
this Agreement or seeks material damages in connection with any of the
Contemplated Transactions.
SECTION 5.2 Conditions to the Obligations of Seller. The obligations of
Seller hereunder to consummate the Contemplated Transactions are subject, at the
option of Seller, to the fulfillment prior to or at the Closing of each of the
following further conditions:
(a) Performance. Each of Premier and Buyer shall have performed and
complied with all agreements, obligations and
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covenants required by this Agreement to be performed or complied with by it at
or prior to the Closing Date.
(b) Representations and Warranties. The representations and warranties
of Premier and Buyer contained in this Agreement and in any certificate or other
writing delivered by Premier or Buyer pursuant hereto shall be true at and as of
the Closing Date as if made at and as of such time.
(c) Purchase Price. (i) Buyer shall have repaid in full the Retired
Debt and shall have delivered to Seller all notes or other evidence of the
Retired Debt;
(ii) Buyer, Premier and the lenders in respect of the Assumed
Debt shall have executed and delivered agreements and other instruments of
assumption pursuant to which Buyer and/or Premier shall have assumed the Assumed
Debt and Buyer shall have delivered to Seller (1) all notes, guarantees or
letters of credit or other evidence of the Assumed Debt, (2) evidence reasonably
satisfactory to Arnold S. Gurtler of the release of the guaranty of the City
Debt by Arnold S. Gurtler, (3) evidence reasonably satisfactory to the General
Partner and the Limited Partner of the release of the Environmental Indemnity of
General Partner and Limited Partner for the BNP Debt, (4) evidence reasonably
satisfactory to the Seller of the release of the deed of trust granted by
General Partner on its separate real property to secure the City Debt, and (5)
evidence reasonably satisfactory to the Seller of the release to Limited Partner
by BNP under the BNP Debt of the debt service reserve attributable to Limited
Partner;
(iii) Premier shall have delivered to the Seller, on behalf of
each Electing Partner, (1) certificates representing the Transaction Shares
which such Electing Partner is entitled to receive, registered in the name of
such Electing Partner and (2) executed copies of a registration rights
agreement, substantially in the form annexed hereto as Exhibit 5.2A (the
"Registration Rights Agreement");
(iv) Premier shall have arranged for the release to Limited
Partner of the letter of credit posted by Limited Partner with respect to the
tax increment financing provided by DURA for the Park; and
(v) Buyer shall have delivered to Seller immediately available
funds equal to the Net Proceeds less the product obtained by multiplying (1) the
number of shares of Transaction Shares, by (2) the Average Closing Price.
(d) Buyer Required Consents. All Buyer Required Consents shall have
been obtained.
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(e) Documentation. There shall have been delivered to Seller the
following:
(i) A certificate, dated the Closing Date, of the Chairman of the
Board, the President or Chief Financial Officer of Buyer and Premier confirming
the matters set forth in Section 5.2(a) and (b) hereof.
(ii) A certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of each such party certifying, among other things, that
attached or appended to such certificate (A) is a true and correct copy of its
Certificate of Incorporation and all amendments if any thereto as of the date
thereof; (B) is a true and correct copy of its By-laws as of the date thereof;
(C) is a true copy of all corporate actions taken by it, including resolutions
of its board of directors authorizing the execution, delivery and performance of
this Agreement, and each other Transaction Document to be delivered by such
party pursuant hereto; and (D) are the names and signatures of its duly elected
or appointed officers who are authorized to execute and deliver this Agreement
and any certificate, document or other instrument in connection herewith.
(iii) Evidence of the good standing and corporate existence of
Buyer and Premier reasonably requested by Seller.
(iv) A signed opinion of Premier's counsel, dated the Closing
Date and addressed to Seller, substantially in the form of opinion annexed as
Exhibit 5.2B hereto.
(v) Copies of all Buyer Required Consents.
(vi) A copy of an assumption agreement substantially in the form
annexed as Exhibit 5.2C (the "Assumption Agreement") executed by Buyer.
SECTION 5.3 Conditions to the Obligations of Premier and Buyer. All
obligations of Premier and Buyer to consummate the Contemplated Transactions
hereunder are subject, at the option of Premier, to the fulfillment prior to or
at the Closing of each of the following further conditions:
(a) Performance. Each of Seller and General Partner shall have
performed and complied with all agreements, obligations and covenants required
by this Agreement to be performed or complied with by it at or prior to the
Closing Date.
(b) Representations and Warranties. The representations and warranties
of Seller and General Partner, as to Seller, and of each Partner as to itself,
contained in this
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Agreement and in any certificate or other writing delivered by Seller or Partner
pursuant hereto shall be true at and as of the Closing Date as if made at and as
of such time.
(c) Environmental. The testing of the ground water conditions at the
Park by Buyer's engineer shall establish an acceptable baseline of information
that, in the professional judgment of such engineer, is not materially worse
than the water quality that it would be reasonable to expect based on the tests,
analyses and other information heretofore supplied by Seller to Buyer.
(d) Seller Required Consents. All Seller Required Consents shall have
been obtained.
(e) Liens. All Liens on the Assets or Real Property in respect of the
Retired Debt shall have been released and discharged in form and substance
acceptable to Premier.
(f) Deed; Survey and Title Insurance. Seller shall have delivered to
Buyer a special warranty deed conveying to Buyer fee simple title to the Real
Property (subject only to the Permitted Liens), and containing all customary
covenants utilized in connection with transfers of comparable real property in
the State of Colorado and all other provisions reasonably required by the title
insurance company referred to in the following sentence. Buyer shall have
procured (i) title insurance with respect to the Real Property (including
easements, rights-of-way, conditions and restrictions of record), which
insurance shall be subject only to Permitted Liens and such exceptions as are
customary on the ALTA standard title insurance form or which are specifically
agreed to by Buyer, from First American Heritage Title Insurance Company in an
amount reasonably satisfactory to Buyer; and (ii) a recent survey, by a licensed
surveyor selected by Buyer, of the Real Property, showing the boundaries,
monuments, easements and rights-of-way of record, improvements and
encroachments, if any. Seller and General Partner shall have delivered to such
title insurance company all agreements, instruments and documents reasonably
required by it to issue the title insurance referred to above.
(g) Discharge of Certain Liability. Seller shall have delivered to
Buyer evidence, reasonably satisfactory to Buyer, of Seller's payment or other
satisfaction of or provision for the 1996 Bonuses, all Percentage Payments, the
fees and commissions described on Schedule 2.20, all other amounts payable by or
on behalf of Seller on or prior to the Closing Date under Company Plans and any
applicable Transferred Contract arising out of the Contemplated Transactions.
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(h) DURA Agreement. Buyer and DURA shall have executed and delivered
an amendment to the DURA Agreement in form and substance reasonably acceptable
to Buyer, amending Section 4.1(a) of the DURA Agreement and deleting Sections
4.1(b) and (c) thereof.
(i) Damage. There shall not have occurred since the date of execution
of this Agreement, any damage, destruction or other casualty loss (whether or
not covered by insurance), condemnation or other taking materially adversely
affecting the Business.
(j) Ascent. Ascent shall have executed and delivered a letter
agreement, pursuant to which Ascent agrees to be bound by the provisions of
Section 4.9 hereof.
(k) Documentation. There shall have been delivered to Buyer the
following:
(i) A certificate dated the Closing Date of Seller confirming the
matters set forth in Sections 5.3(a) and (b).
(ii) Certificates, dated the Closing Date, of the Secretary or
Assistant Secretary of the General Partner (on behalf of itself and Seller)
certifying, among other things, that attached or appended to such certificate
(A) is a true and correct copy of the Limited Partnership Agreement of Seller
and all amendments, if any, thereto as of the date thereof; (B) is a true copy
of the resolutions of the board of directors of the General Partner authorizing
the execution, delivery and performance of this Agreement (on behalf of itself
and the Seller), and each other Transaction Document to be delivered by Seller
or General Partner pursuant hereto; and (D) are the names and signatures of the
duly elected or appointed officers of such General Partner who are authorized to
execute and deliver this Agreement and any certificate, document or other
instrument in connection herewith.
(iii) A certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of each Partner certifying, among other things, that
attached or appended to such certificate (A) is a true and correct copy of its
certificate of incorporation and by-laws (or comparable instruments) and all
amendments, if any, thereto as of the date thereof; (B) is a true copy of all
corporate actions taken by it, including resolutions of its board of directors
(or comparable governing body) authorizing the execution, delivery and
performance of this Agreement, and each other document to be delivered by such
Partner pursuant hereto; and (C) are the names and signatures of its duly
elected or appointed officers who are authorized to
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execute and deliver this Agreement and any certificate, document or other
instrument in connection therewith.
(iv) Evidence of the good standing and partnership existence of
Seller reasonably requested by Buyer.
(v) A signed opinion of Seller's counsel, dated the Closing Date,
addressed to Buyer, substantially in the form of opinion annexed as Exhibit 5.3A
hereto.
(vi) Copies of all Seller Required Consents and all transferable
Permits.
(vii) Possession and control of the Assets.
(viii) An executed copy of a Bill of Sale and Assignment
substantially in a form annexed hereto as Exhibit 5.3C ("the Bill of Sale") and
such other instruments of transfer in respect of the Assets as Buyer shall
reasonably request.
(ix) A copy of the Assumption Agreement executed by Seller.
(x) A copy of the Registration Rights Agreement executed by each
Electing Partner.
(xi) An executed copy of a release substantially in the form
annexed as Exhibit 5.3D by each of the partners of Seller, releasing and
discharging Premier and Buyer from any and all Claims against and Liabilities of
Seller arising out of or relating to the Business or the operations of Seller.
(xii) An executed copy of a consulting and non-competition
agreement between Premier and Arnold S. Gurtler, substantially in the form of
Exhibit 5.3D.
(xiii) Evidence satisfactory to Premier of the termination of the
Management Agreement.
(xiv) An estoppel certificate from the lenders under the Assumed
Debt and the parties to the Allocation Agreement pursuant to Section 9D thereof,
in each case, in form and substance reasonably acceptable to Buyer.
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ARTICLE VI
INDEMNIFICATION
SECTION 6.1 Survival of Representations and Warranties. (a) All
representations and warranties shall survive the execution and delivery of this
Agreement and the Closing hereunder. Notwithstanding the foregoing, all
representations and warranties of Seller and Partners contained in this
Agreement, on any Schedule hereto or in any instrument delivered in connection
with or pursuant to this Agreement (other than the representations and
warranties as to title as contained in the conveyance deed and bill of sale)
shall terminate and expire 18 months after the Closing Date; provided, however,
that the liability of Seller, or any Partner shall not terminate as to any
specific claim or claims of the type referred to in Section 6.2 hereof, whether
or not fixed as to liability or liquidated as to amount, with respect to which
Seller and the Partners have been given specific notice on or prior to the date
on which such liabilities would otherwise terminate pursuant to the terms of
this Section 6.1(a) and provided, further, that the termination of any such
representation and warranty shall not affect the ability of Buyer to seek
indemnification under Section 6.2 (iii).
(b) All representations and warranties of Premier and Buyer shall
terminate and expire 18 months after the Closing Date; provided, however, that
the liability of Premier or Buyer shall not terminate as to any specific claim
or claims of the type referred to in Section 6.3 hereof, whether or not fixed as
to liability or liquidated as to amount, with respect to which Premier or Buyer
has been given specific notice on or prior to the date on which such Liability
would otherwise terminate pursuant to the terms of this Section 6.1(b).
SECTION 6.2 Obligation of the Partners to Indemnify. Subject to the
provisions of Section 6.5, each Partner, severally but not jointly, agrees to
indemnify, defend and hold harmless Premier and Buyer (and their respective
directors, officers, employees, Affiliates, successors and assigns) from and
against all Claims, losses, Liabilities, damages, deficiencies, judgments,
settlements, costs of investigation or other expenses (including interest,
penalties and reasonable attorneys' fees and disbursements and expenses incurred
in enforcing this indemnification) (collectively, the "Losses") suffered or
incurred by Premier, Buyer or any of the foregoing persons arising out of (i)
any breach of the representations and warranties of Seller or such Partner
contained in this Agreement or in the Schedules or any Transaction Document;
(ii) any breach of the covenants and agreements of Seller or the General Partner
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contained in this Agreement or in the Schedules or any Transaction Document; or
(iii) any Retained Liabilities.
SECTION 6.3 Obligation of Premier and Buyer to Indemnify. Premier and
Buyer, jointly and severally, agree to indemnify, defend and hold harmless each
of Seller, the General Partner and the Limited Partner (and any director,
officer, employee, Affiliate or successors and assigns of any thereof) from and
against any Losses suffered or incurred by Seller, the General Partner, Limited
Partner or any of the foregoing persons arising out of (i) any breach of the
representations and warranties of Premier and Buyer or of the covenants and
agreements of Premier or Buyer contained in this Agreement or in the Schedules
or any Transaction Documents; or (ii) any Assumed Liabilities.
SECTION 6.4 Notice and Opportunity to Defend Third Party Claims. (a)
Promptly after receipt by any party hereto (the "Indemnitee") of notice of any
demand, claim or circumstance which would or might give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation (an "Asserted Liability") that may result in a Loss, the
Indemnitee shall give prompt notice thereof (the "Claims Notice") to the party
or parties obligated to provide indemnification pursuant to Section 6.2 or 6.3
(collectively, the "Indemnifying Party"). The Claims Notice shall describe the
Asserted Liability in reasonable detail and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has been
or may be suffered by the Indemnitee.
(b) The Indemnifying Party may elect to defend, at its own expense and
with its own counsel, any Asserted Liability unless (i) the Asserted Liability
seeks an Order, injunction or other equitable or declaratory relief against the
Indemnitee or (ii) the Indemnitee shall have reasonably concluded that (x) there
is a conflict of interest between the Indemnitee and the Indemnifying Party in
the conduct of such defense or (y) the Indemnitee shall have one or more
defenses not available to the Indemnifying Party. If the Indemnifying Party
elects to defend such Asserted Liability, it shall within thirty days (or
sooner, if the nature of the Asserted Liability so requires) notify the
Indemnitee of its intent to do so, and the Indemnitee shall cooperate, at the
expense of the Indemnifying Party, in the defense of such Asserted Liability. If
the Indemnifying Party elects not to defend the Asserted Liability, is not
permitted to defend the Asserted Liability by reason of the first sentence of
this Section 6.4(b), fails to notify the Indemnitee of its election as herein
provided or contests its obligation to indemnify under this Agreement with
respect to such Asserted Liability, the Indemnitee may pay, compromise or defend
such Asserted Liability at the sole cost and expense of the
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Indemnifying Party. Notwithstanding the foregoing, neither the Indemnifying
Party nor the Indemnitee may settle or compromise any claim over the reasonable
written objection of the other, provided that the Indemnitee may settle or
compromise any claim as to which the Indemnifying Party has failed to notify the
Indemnitee of its election under this Section 6.4(b) or as to which the
Indemnifying Party is contesting its indemnification obligations hereunder. In
any event, the Indemnitee and the Indemnifying Party may participate, at their
own expense, in the defense of any Asserted Liability. If the Indemnifying Party
chooses to defend any Asserted Liability, the Indemnitee shall make available to
the Indemnifying Party any books, records or other documents within its control
that are necessary or appropriate for such defense. Any Losses of any Indemnitee
for which indemnification is available hereunder shall be paid upon written
demand therefor.
SECTION 6.5 Limits on Indemnification. Notwithstanding any other
provision of this Agreement:
(a) No Partner shall be liable under this Article VI with respect to
losses arising out of any representation or warranty of any other Partner
relating to such other Partner.
(b) Except as provided in Section 6.5(a) above, the Partners'
obligations to indemnify Premier and Buyer hereunder shall be several and not
joint and each Partner shall be responsible to indemnify Premier and Buyer with
respect to 1/2 of the amount of its loss.
(c) The Partners shall not be obligated to indemnify Premier and Buyer
in respect of any loss specified in Section 6.2(i) unless and until the net
aggregate losses of Premier and Buyer under Section 6.2 shall have exceeded
$100,000, in which event the Partners shall be obligated to indemnify Premier
and Buyer in respect of all of their losses under such Section in excess of such
amount.
(d) No Partner shall be obligated to pay to Premier and Buyer
under this Article VI an aggregate amount in excess of $1,000,000.
SECTION 6.6 Adjustment. It is the intent of the parties that any amounts
paid under Sections 6.2 or 6.3 shall represent an adjustment of the Purchase
Price and the parties will report such payments consistent with such intent.
SECTION 6.7 Exclusive Remedy. Except as otherwise explicitly provided in
this Agreement, the parties agree that the indemnification provisions of this
Article VI shall constitute
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the parties' sole and exclusive remedies in respect of this Agreement and the
Contemplated Transactions (other than Claims in the nature of fraud).
ARTICLE VII
SPECIFIC PERFORMANCE; TERMINATION
SECTION 7.1 Specific Performance and Damages. Seller acknowledges and
agrees that, if Seller fails to proceed with the Closing in any circumstance
other than those described in clauses (a), (b), (d) or (e) of Section 7.2 below,
Buyer will not have adequate remedies at law with respect to such breach and
that, in such event, Buyer shall be entitled, without the necessity or
obligation of posting a bond or other security, to commence a suit in equity to
obtain specific performance of Seller's obligations under this Agreement. Seller
and Partners specifically affirm the appropriateness of such injunctive or other
equitable relief in any such action. Buyer and Premier acknowledge and agree
that, if Buyer fails to proceed with the Closing in any circumstance other than
those described in clauses (a), (c), (d) or (e) of Section 7.2 below, Seller
shall have recourse at law to a claim for damages against Buyer.
SECTION 7.2 Termination. This Agreement may be terminated and the
Contemplated Transactions may be abandoned at any time prior to the Closing:
(a) By mutual written consent of Seller and Buyer;
(b) By Seller if (i) there has been a material misrepresentation or
breach of warranty on the part of Premier and Buyer in the representations and
warranties contained herein and such material misrepresentation or breach of
warranty, if curable, is not cured within the earlier of November 30, 1996 or 30
days after written notice thereof from Seller; (ii) Premier or Buyer has
committed a material breach of any covenant imposed upon it hereunder and fails
to cure such breach within the earlier of November 30, 1996 or 30 days after
written notice thereof from Seller, provided, that there shall be no right to
cure a breach of the covenant to pay the Purchase Price and other adjustments
provided in this Agreement at the Closing; or (iii) any condition to Seller's
obligations hereunder becomes incapable of fulfillment through no fault of
Seller and is not waived by Seller, provided that, on the date of termination,
all conditions to Premier's and Buyer's obligations specified in Sections
5.3(a), (b), (c), (d), (g), (i), and (j) shall have been satisfied and Seller is
otherwise ready and willing to proceed with the Closing;
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(c) By Buyer, if (i) there has been a material misrepresentation or
breach of warranty on the part of Seller, the General Partner or the Partners in
the representations and warranties contained herein and such material
misrepresentation or breach of warranty, if curable, is not cured within the
earlier of November 30, 1996 or 30 days after written notice thereof from Buyer;
(ii) either Seller or General Partner has committed a material breach of any
covenant imposed upon it hereunder and fails to cure such breach within the
earlier of November 30, 1996 or 30 days after written notice thereof from Buyer;
or (iii) any condition to Premier's and Buyer's obligations hereunder becomes
incapable of fulfillment through no fault of Buyer and is not waived by Buyer,
provided that, on the date of termination, all conditions to Seller's
obligations hereunder specified in Sections 5.2(a), (b) and (d) shall have been
satisfied and Buyer is otherwise ready and willing to proceed with the Closing;
(d) By Seller or by Buyer, if there shall be any Law that makes
consummation of the Contemplated Transactions illegal or otherwise prohibited,
or if any Order enjoining Seller or Buyer from consummating the Contemplated
Transactions is entered and such Order shall have become final and
nonappealable; and
(e) By either Seller or Buyer if such party is otherwise ready and
willing to proceed with the Closing and the Closing shall not have occurred on
or prior to November 30, 1996, provided, that if so terminated by Seller, the
conditions specified in Section 5.3(a), (b), (c), (d), (g), (i), and (j) shall
have been satisfied on the date of termination, or, if so terminated by Buyer,
the conditions specified in Section 5.2(a), (b) and (d) shall have been
satisfied on the date of termination.
SECTION 7.3 Effect of Termination; Right to Proceed. Subject to the
provisions of Section 7.1 hereof, in the event that this Agreement shall be
terminated pursuant to Section 7.2, all further obligations of the parties under
the Agreement shall terminate without further liability of any party hereunder
except (i) to the extent that a party has made a material misrepresentation
hereunder or committed a breach of any material covenant and agreement imposed
upon it hereunder; (ii) to the extent that any condition to a party's
obligations hereunder became incapable of fulfillment because of the breach by a
party of its obligations hereunder and (iii) that the agreements contained in
Sections 4.8 and 4.10 shall survive the termination hereof. In the event that a
condition precedent to its obligation is not met, nothing contained herein shall
be deemed to require any party to terminate this Agreement, rather than to waive
such condition precedent and proceed with the Contemplated Transactions.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. (a) Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally by
hand or by recognized overnight courier, telecopied or mailed (by registered or
certified mail, postage prepaid) as follows:
(i) If to Premier or Buyer, one copy to:
Premier Parks Inc.
122 East 42nd Street,
49th Floor New York, New York 10168
Telecopier: (212) 949-6203
Attn: Kieran E. Burke, Chairman and CEO
with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Telecopier: (212) 702-5810
Attn: James M. Coughlin, Esq.
(ii) If to Seller or the General Partner, one copy to:
c/o Chilcott Entertainment Corp.
1675 Broadway, Suite 2500
Denver, Colorado 80202
Telecopier: (303) 534-2221
Attn: Arnold S. Gurtler
with a copy to:
Ireland, Stapleton, Pryor &
Pascoe, P.C.
1675 Broadway, Suite 2600
Denver, Colorado 80202
Telecopier: (303) 623-2062
Attn: Richard Linquanti, Esq.
(iii) If to the Limited Partner, one copy to:
Hensel Phelps Construction Co.
420 Sixth Avenue
P.O. Box 0
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Greeley, Colorado 80632-0710
Attn: Jerry Morgensen
with a copy to:
Hensel Phelps Construction Co.
420 Sixth Avenue
P.O. Box 0
Greeley, Colorado 80632-0710
Attn: Eric Wilson, Esq.
(b) Each such notice or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in Section 8.1(a) (with confirmation of transmission); or (ii) if
given by any other means, when delivered at the address specified in Section
8.1(a). Any party by notice given in accordance with this Section 8.1 to the
other party may designate another address (or telecopier number) or person for
receipt of notices hereunder. Notices by a party may be given by counsel to such
party.
SECTION 8.2 Entire Agreement. This Agreement (including the Schedules and
Exhibits hereto) and the collateral agreements executed in connection with the
consummation of the Contemplated Transactions contain the entire agreement among
the parties with respect to the subject matter hereof and related transactions
and supersede all prior agreements, written or oral, with respect thereto.
SECTION 8.3 Waivers and Amendments; Non-Contractual Remedies; Preservation
of Remedies. This Agreement may be amended, superseded, cancelled, renewed or
extended only by a written instrument signed by Seller and Buyer, provided that
any amendment to the provisions of Article VI relating to the General Partner or
the Limited Partner shall require the written consent of the General Partner or
a majority in interest of the Limited Partner as the case may be. The provisions
hereof may be waived in writing by the party to be charged therewith. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any such right, power or privilege, nor any single or partial exercise of any
such right, power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege. Except as otherwise
provided herein, the rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at law
or in equity. The parties agree that any party hereto shall be entitled (without
any requirement of posting a bond or other security) to an injunction
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enjoining and restraining any other party from violating Sections 4.6 and
4.8 hereof.
SECTION 8.4 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Colorado applicable to agreements
made and to be performed entirely within such State, without regard to the
conflict of laws rules thereof.
SECTION 8.5 Binding Effect; No Assignment. This Agreement and all of its
provisions, rights and obligations shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs and legal
representatives. This Agreement may not be assigned (including by operation of
Law) by a party without the express written consent of Premier (in the case of
assignment by Seller or a Partner) or Seller (in the case of assignment by
Premier or Buyer) and any purported assignment, unless so consented to, shall be
void and without effect; provided, however, without obtaining such consent,
Buyer may assign its rights and obligations hereunder to any Affiliate of
Premier. Nothing herein express or implied is intended or shall be construed to
confer upon or to give anyone other than the parties hereto and their respective
heirs, legal representatives and successors any rights or benefits under or by
reason of this Agreement and no other party shall have any right to enforce any
of the provisions of this Agreement.
SECTION 8.6 Exhibits. All Exhibits and Schedules attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
SECTION 8.7 Severability. If any provision of this Agreement for any reason
shall be held to be illegal, invalid or unenforceable, such illegality shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such illegal, invalid or unenforceable provision had never been
included herein.
SECTION 8.8 Counterparts. The Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
SECTION 8.9 Third Parties. Except as specifically set forth or referred to
herein, nothing herein express or implied is intended or shall be construed to
confer upon or give to any
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person other than the parties hereto and their permitted successors or assigns,
any rights or remedies under or by reason of this Agreement or the Contemplated
Transactions.
SECTION 8.10 Power of Attorney; Further Assurances.
(a) Effective upon the Closing Date, Seller hereby constitutes and
appoints Buyer the true and lawful attorney of Seller with full power of
substitution, in the name of Buyer, or the name of Seller, on behalf of and for
the benefit of Buyer to institute and prosecute, in the name of Seller or
otherwise, all proceedings which Buyer may deem proper in order to collect,
assert or enforce any claim, right or title of any kind in or to the Assets
transferred, conveyed or assigned as provided herein, to defend and compromise
any and all actions, suits or proceedings in respect of any of the Assets, and
to do all such acts and things in relation thereto as Buyer may deem advisable.
Seller agrees that the foregoing powers are coupled with an interest and shall
not be revocable by the dissolution of Seller or in any other manner or for any
reason.
(b) At any time and from time to time after the Closing Date, upon the
request of Buyer, Seller will do, execute, acknowledge and deliver, or cause to
be done, executed, acknowledged or delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney or assurances as may be
reasonably required for the better transferring, assigning, conveying, granting,
assuring and confirming to Buyer, or for aiding and assisting in the collection
of or reducing to possession by Buyer, any of the Assets to be transferred,
conveyed and assigned hereunder or to vest in Buyer all of Seller's right, title
and interest in and to the Assets being conveyed hereunder. Seller and Buyer
will each, respectively, bear their own costs and expenses incurred in
compliance with its obligations under this Section 8.10.
SECTION 8.11 Title and Risk of Loss. Legal title, equitable title and risk
of loss with respect to the Assets and rights to be transferred hereunder shall
not pass to Buyer until the Assets or right is transferred at the Closing
hereunder.
ARTICLE IX
DEFINITIONS
SECTION 9.1 Definitions. (a) The following terms, as used herein, have the
following meanings:
"Accounts" shall have the meaning specified in the BNP Agreement.
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"Acquisition Proposal" shall mean any proposal involving, directly or
indirectly, (i) the acquisition of, or merger or other business combination
involving Seller or the General Partner, (ii) the sale or other transfer of any
equity interest in Seller or General Partner, (iii) the sale, lease, transfer or
management of the Business, (iv) the sale or other transfer of any assets of
Seller (except in the ordinary course), and (v) any other transaction
inconsistent with the Contemplated Transaction or which would render any of them
impossible or impracticable to consummate.
"Affiliate" of any person means any other person directly or indirectly
through one or more intermediary persons, controlling, controlled by or under
common control with such person.
"Agreement" or "this Agreement" shall mean, and the words "herein",
"hereof" and "hereunder" and words of similar import shall refer to, this
agreement as it from time to time may be amended.
"Allocation Agreement" shall mean the Allocation Agreement dated as of
January 15. 1993, among Trillium Corporation, Elitch Gardens Co. (as predecessor
to Seller), and Public Service Company of Colorado, as amended by the First
Amendment thereto, effective as of December 31, 1993, and the Second Amendment
thereto, dated as of April 29, 1994.
"Ascent" shall mean Ascent Entertainment Group, Inc.
"Ascent Agreement" shall mean the agreement, dated May 25, 1994, among the
Seller, the Limited Partner, The Anschutz Corporation and Comsat Video
Enterprises, Inc. (predecessors to Ascent).
The term "audit" or "audited" when used in regard to financial statements
shall mean an examination of the financial statements by a firm of independent
certified public accountants in accordance with generally accepted auditing
standards for the purpose of expressing an opinion thereon.
"Average Closing Price" shall mean the numerical average of the closing
sales price (regular way) per share of Premier Stock (or, in case no such
reported sale takes place on such day the average of the closing bid and asked
prices) on the NASDAQ National Market System for each of the five Trading Days
ending two Trading Days prior to the Closing Date.
"BNP Debt" shall mean the Debt in the original principal amount of
$27,000,000 outstanding under the Credit
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Agreement, dated May 1, 1995 ("BNP Agreement"), between Seller and Banque
Nationale de Paris, Los Angeles Branch ("BNP").
"Centennial Park Agreement" shall mean the Centennial Park Use and
Development Agreement dated _____, 1995, between Seller and the City.
"City Debt" shall mean Debt in the original principal amount of $7,000,000
outstanding under the Loan Agreement (Section 108) dated April 12, 1994, as
amended, between Seller and the City and County of Denver (the "City").
"Condition of the Business" shall mean the Assets, results of operations
after the Closing, or prospects of the Business.
"Contract" shall mean any contract, agreement, indenture, note, bond,
lease, conditional sale contract, mortgage, license, franchise, instrument,
commitment or other binding arrangement, whether written or oral.
"Contractor" shall mean any person party to a Contract.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
The term "control", with respect to any person, shall mean the power to
direct the management and policies of such person, directly or indirectly, by or
through stock ownership, agency or otherwise, or pursuant to or in connection
with an agreement, arrangement or understanding (written or oral) with one or
more other persons by or through stock ownership, agency or otherwise; and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Debt" of any person shall mean (i) money borrowed by or on behalf of such
person from any person; (ii) any indebtedness of such person arising under
leases required to be capitalized under GAAP or evidenced by a note, bond,
debenture or similar instrument; (iii) any indebtedness of such person arising
under purchase money obligations or representing the deferred purchase price of
property and services (other than current trade payables incurred in the
ordinary course of the Business); and (iv) any Liability of such person under
any guaranty, letter of credit, performance credit or other agreement having the
effect of assuring a creditor against loss.
"DURA Agreement" shall mean the Post-Construction Agreement, dated May 31,
1994 between The Denver Urban Renewal Authority ("DURA") and Seller.
-47-
<PAGE>
"Environmental Laws" shall mean any and all Laws (including common law),
Orders, Permits, agreements or any other requirement or restriction promulgated,
imposed, enacted or issued by any federal, state, local and foreign Governmental
Bodies relating to human health or the environment, including the emission,
discharge or Release of pollutants, contaminants, Hazardous Substances or wastes
into the environment (which includes, without limitation, ambient air, surface
water, ground water, or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"GAAP" shall mean generally accepted accounting principles in effect on the
date hereof as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States.
"Hazardous Substances" shall mean any dangerous, toxic, radioactive,
caustic or otherwise hazardous material, pollutant, contaminant, chemical, waste
or substance defined, listed or described as any of such in or governed by any
Environmental Law, including but not limited to urea-formaldehyde,
polychlorinated biphenyls, asbestos or asbestos-containing materials, radon,
explosives, known carcinogens, petroleum and its derivatives, petroleum
products, or any substance which might cause any injury to human health or
safety or to the environment or might subject the owner or operator of the Real
Property to any Regulatory Actions or Claims.
"HP Note" shall mean the Amended and Restated Note of the Seller dated June
30, 1995, in favor of Hensel Phelps Construction Co. in the original principal
amount of $7,500,000.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Inventory" shall mean, as of any date, collectively, all inventories of
prize materials, food, beverages (alcoholic and nonalcoholic), merchandise, and
other products owned by or on behalf of Seller and held for resale or for
distribution, together with packaging and samples thereof, operating supplies
and spare or maintenance parts owned by Seller as of such date.
-48-
<PAGE>
"IRS" shall mean the Internal Revenue Service.
"Liability" shall mean any direct or indirect indebtedness, liability,
assessment, claim, loss, damage, deficiency, obligation or responsibility, fixed
or unfixed, choate or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, actual or potential, contingent or otherwise
(including any liability under any guaranties, letters of credit, performance
credits or with respect to insurance loss accruals).
"Lien" shall mean, with respect to any Asset, any mortgage, lien (including
mechanics, warehousemen, laborers and landlords liens), claim, pledge, charge,
security interest, preemptive right, right of first refusal, option, judgment,
title defect, or encumbrance of any kind in respect of or affecting such Asset.
"Limited Partnership Agreement" shall mean the Amended and Restated Limited
Partnership Agreement of the Seller, dated April 18, 1995.
"Management Agreement" shall mean the Amended and Restated Management
Agreement dated as of April 18, 1995 between Seller and General Partner.
The term "person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity,
including a government or political subdivision or an agency or instrumentality
thereof.
"Premier Stock" means the shares of Common Stock, par value $.05 per share,
of Premier as the same exist on the date hereof.
"Regulatory Actions" shall mean any claim, demand, action, suit or
proceeding brought or instigated by any Governmental Body in connection with any
Environmental Law, including, without limitation, civil, criminal and/or
administrative proceedings, whether or not seeking costs, damages, penalties or
expenses.
"Release" shall mean the intentional or unintentional, spilling, leaking,
disposing, discharging or disturbance of, or emitting, depositing, injecting,
leaching, escaping, or any other release or threatened release to or from,
however defined, any Hazardous Substance in violation of any Environmental Law.
-49-
<PAGE>
"Reportable Event" shall mean any of the events described in Section
4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA.
"Tax" (including, with correlative meaning, the terms "Taxes" and
"Taxable") shall mean (i) any net income, gross income, gross receipts, sales,
use, ad valorem, transfer, transfer gains, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, rent, recording,
occupation, premium, real or personal property, intangibles, environmental or
windfall profits tax, alternative or add-on minimum tax, customs duty or other
tax, fee, duty, levy, impost, assessment or charge of any kind whatsoever
(including but not limited to taxes assessed to real property and water and
sewer rents relating thereto), together with any interest and any penalty,
addition to tax or additional amount imposed by any Governmental Body (domestic
or foreign) (a "Tax Authority") responsible for the imposition of any such tax,
with respect to Seller, the Business or the Assets (or the transfer thereof);
(ii) any liability for the payment of any amount of the type described in the
immediately preceding clause (i) as a result of Seller being a member of an
affiliated or combined group with any other corporation at any time on or prior
to the Closing Date; and (iii) any Liability of Seller for the payment of any
amounts of the type described in the immediately preceding clause (i) as a
result of a contractual obligation to indemnify any other person.
"Tax Return" shall mean any return or report (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to any Tax Authority.
"Total Note" shall mean the Amended and Restated Note of the Seller dated
June 30, 1995, in favor of Total Petroleum, Inc. in the original principal
amount of $2,500,000.
"Trading Day" means a day on which the NASDAQ National Market System is
open.
"Transaction Documents" shall mean, collectively, this Agreement, and each
of the other agreements and instruments to be executed and delivered by all or
some of the parties hereto in connection with the consummation of the
transactions contemplated hereby.
(b) The following terms are defined in the following sections of this
Agreement:
-50-
<PAGE>
Term Section
---- -------
Annual Statements 2.5(a)
Applications 4.13
Approved Prepaid Expenses 4.21
Asserted Liability 6.4(a)
Assets 1.1(a)
Assumed Debt 1.3(b)
Assumed Liabilities 1.2(a)
Assumption Agreement 5.2(e)
Bill of Sale 5.3(l)
Business Recital
Buyer Recital
Buyer Required Consents 3.2
Claims 2.12
Claims Notice 6.4(a)
Closing 1.5
Closing Date 1.5
Company 2.14(a)
Company Plan 2.14(c)
Confidential Information 4.9
Contemplated Transactions 2.1
Electing Partner 1.3(d)
Election 1.3(d)
Employee Benefit Plan 2.14(a)
Environmental Liabilities 1.2(b)
Equipment 1.1(a)
Excluded Assets 1.1(b)
General Partner Recital
Governmental Bodies 2.17
Group 2.14(a)
Improvements 1.1(a)
Indemnifying Party 6.4(a)
Indemnitee 6.4(a)
Insurance Policies 2.16
Intellectual Property Rights 1.1(a)
Interim Statements 2.5(a)
Land 1.1(a)
Latest Balance Sheet 2.6
Latest Balance Sheet Date 2.6
Laws 2.17
Limited Partner Recital
Losses 6.2
Memorabilia 1.1(a)
Net Proceeds 1.3(e)
1996 Bonus 4.12(c)
Orders 2.17
Park Recital
Partners Recital
Percentage Payment 1.2(b)
Percentage Share 1.3(d)
-51-
<PAGE>
Term Section
---- -------
Permits 1.1(a)
Permitted Liens 2.9(a)
Premier Recital
Premier Filings 4.18
Premier Reports 3.5
Prepaid Deposits 1.1(a)
Prepaid Expenses 4.21
Purchase Price 1.3(a)
Real Property 1.1(a)
Receivables 4.14
Registration Rights Agreement 5.2(c)
Representatives 4.2
Retained Liabilities 1.2(b)
Retired Debt 1.3(b)
Securities Act 1.3(d)
Seller Recital
Seller Required Consents 2.2
Term 4.9
Territory 4.9(a)
Transaction Shares 1.3(d)
Transferred Contracts 1.1(a)
Transferred Employees 4.12(a)
SECTION 9.2 Interpretation. Unless the context otherwise requires, the
terms defined in Section 9.1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms defined herein. All accounting terms defined in Section 9.1,
and those accounting terms used in this Agreement not defined in Section 9.1,
except as otherwise expressly provided herein, shall have the meanings
customarily given thereto in accordance with GAAP. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
IN WITNESS WHEREOF, the undersigned have executed this Asset Purchase
Agreement as of the date set forth above.
-52-
<PAGE>
PREMIER PARKS INC.
By: /s/ Kieran E. Burke
-------------------------------------
Kieran E. Burke
Chairman of the Board and
Chief Executive Officer
PREMIER PARKS ACQUISITION CORP.
By: /s/ Kieran E. Burke
-------------------------------------
Kieran E. Burke
Chairman of the Board and
Chief Executive Officer
ELITCH GARDENS COMPANY
By: Chilcott Entertainment Company,
general partner
By: /s/ Arnold S. Gurtler
-------------------------------------
Arnold S. Gurtler
President
CHILCOTT ENTERTAINMENT COMPANY,
general partner
By: /s/ Arnold S. Gurtler
-------------------------------------
Arnold S. Gurtler
President
HENSEL PHELPS CONSTRUCTION COMPANY
By:
-------------------------------------
Name: Eric L. Wilson
Title: Vice President
-53-
<PAGE>
<PAGE>
PREMIER PARKS INC.
By:
-------------------------------------
Kieran E. Burke
Chairman of the Board and
Chief Executive Officer
PREMIER PARKS ACQUISITION CORP.
By:
-------------------------------------
Kieran E. Burke
Chairman of the Board and
Chief Executive Officer
ELITCH GARDENS COMPANY
By: Chilcott Entertainment Company,
general partner
By:
-------------------------------------
Arnold S. Gurtler
President
CHILCOTT ENTERTAINMENT COMPANY,
general partner
By:
-------------------------------------
Arnold S. Gurtler
President
HENSEL PHELPS CONSTRUCTION COMPANY
By: /s/ Eric L. Wilson
-------------------------------------
Name: Eric L. Wilson
Title: Vice President
-53-
[Conformed Copy]
28490-040-00
================================================================================
CREDIT AGREEMENT
dated as of
October 30, 1996
--------------
PREMIER PARKS INC.
--------------
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
--------------
LEHMAN COMMERCIAL PAPER INC.,
as Arranger
--------------
$115,000,000
================================================================================
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters............................. 1
1.01 Certain Defined Terms.......................................... 1
1.02 Accounting Terms and Determinations............................ 30
1.03 Classes and Types of Loans..................................... 31
Section 2. Commitments, Loans, Notes and Prepayments ..................... 31
2.01 Loans.......................................................... 31
2.02 Borrowings..................................................... 34
2.03 Letters of Credit.............................................. 34
2.04 Changes of Commitments......................................... 40
2.05 Commitment Fee................................................. 41
2.06 Lending Offices................................................ 41
2.07 Several Obligations; Remedies Independent...................... 41
2.08 Notes.......................................................... 42
2.09 Optional Prepayments and Conversions or
Continuations of Loans..................................... 43
2.10 Mandatory Prepayments and Reductions of
Commitments................................................ 44
Section 3. Payments of Principal and Interest............................. 50
3.01 Repayment of Loans............................................. 50
3.02 Interest....................................................... 52
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.................................................................. 53
4.01 Payments....................................................... 53
4.02 Pro Rata Treatment............................................. 54
4.03 Computations................................................... 55
4.04 Minimum Amounts................................................ 55
4.05 Certain Notices................................................ 55
4.06 Non-Receipt of Funds by the Administrative Agent............... 56
4.07 Sharing of Payments, Etc....................................... 58
- i -
<PAGE>
Page
----
Section 5. Yield Protection, Etc.......................................... 59
5.01 Additional Costs............................................... 59
5.02 Limitation on Types of Loans................................... 61
5.03 Illegality..................................................... 62
5.04 Treatment of Affected Loans.................................... 62
5.05 Compensation................................................... 63
5.06 Additional Costs in Respect of Letters of Credit............... 64
5.07 U.S. Taxes..................................................... 65
5.08 Replacement of Lenders......................................... 66
Section 6. Guarantee...................................................... 67
6.01 The Guarantee.................................................. 67
6.02 Obligations Unconditional...................................... 68
6.03 Reinstatement.................................................. 69
6.04 Subrogation.................................................... 69
6.05 Remedies....................................................... 70
6.06 Instrument for the Payment of Money............................ 70
6.07 Continuing Guarantee........................................... 70
6.08 Rights of Contribution......................................... 70
6.09 General Limitation on Guarantee Obligations.................... 71
6.10 Dollar Limitation on Guarantee Obligations..................... 72
Section 7. Conditions..................................................... 72
7.01 Initial Extension of Credit of any Class....................... 72
7.02 Each Term Loan of any Class.................................... 75
7.03 All Extensions of Credit....................................... 81
Section 8. Representations and Warranties................................. 82
8.01 Organization; Powers........................................... 82
8.02 Financial Condition............................................ 82
8.03 Litigation..................................................... 83
8.04 No Breach...................................................... 84
8.05 Action......................................................... 84
8.06 Approvals...................................................... 84
8.07 Properties and Permits, Etc.................................... 85
8.08 Environmental Matters.......................................... 86
8.09 Compliance with Laws and Agreements............................ 89
8.10 Investment Company Act......................................... 89
8.11 Public Utility Holding Company Act............................. 89
8.12 Taxes.......................................................... 89
8.13 ERISA.......................................................... 89
8.14 True and Complete Disclosure................................... 90
8.15 Use of Credit.................................................. 90
8.16 Material Agreements and Liens.................................. 90
8.17 Capitalization................................................. 91
- ii -
<PAGE>
Page
----
8.18 Subsidiaries and Investments................................... 91
8.19 Parks; Real Property........................................... 92
8.20 Insurance...................................................... 92
8.21 Certain Agreement.............................................. 93
Section 9. Covenants of the Borrower...................................... 93
9.01 Financial Statements and Other Information..................... 93
9.02 Notices of Material Events..................................... 96
9.03 Existence, Etc................................................. 97
9.04 Insurance...................................................... 98
9.05 Prohibition of Fundamental Changes.............................101
9.06 Liens..........................................................105
9.07 Indebtedness...................................................106
9.08 Investments....................................................107
9.09 Restricted Payments............................................108
9.10 Certain Financial Covenants....................................108
9.11 Subordinated Indebtedness......................................110
9.12 Lines of Business..............................................111
9.13 Transactions with Affiliates...................................111
9.14 Use of Proceeds, Etc...........................................112
9.15 Certain Further Assurances.....................................114
9.16 Modifications of Certain Documents.............................116
9.17 Prepayment of Certain Indebtedness.............................117
Section 10. Events of Default.............................................117
Section 11. The Administrative Agent and Arranger.........................122
11.01 Appointment, Powers and Immunities............................122
11.02 Reliance by Administrative Agent..............................123
11.03 Defaults......................................................124
11.04 Rights as a Lender............................................124
11.05 Indemnification...............................................125
11.06 Non-Reliance on Administrative Agent and Other
Lenders....................................................125
11.07 Failure to Act................................................126
11.08 Resignation or Removal of Administrative Agent................126
11.09 Consents under Other Loan Documents...........................127
11.10 Arranger......................................................127
Section 12. Miscellaneous.................................................127
12.01 Notices.......................................................127
12.02 Waiver........................................................128
12.03 Amendments, Etc...............................................128
12.04 Expenses, Etc.................................................129
12.05 Successors and Assigns........................................131
12.06 Assignments and Participations................................131
- iii -
<PAGE>
Page
----
12.07 Survival......................................................133
12.08 Counterparts..................................................134
12.09 Governing Law; Submission to Jurisdiction.....................134
12.10 WAIVER OF JURY TRIAL..........................................134
12.11 Captions......................................................134
12.12 Confidentiality...............................................134
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Existing Parks and Real Property
SCHEDULE V - Certain Litigation
SCHEDULE VI - Insurance
SCHEDULE VII - Certain EBITDA Adjustments
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Facility A Term Loan Note
EXHIBIT A-3 - Form of Facility B Term Loan Note
EXHIBIT B-1 - Form of Revolving Credit Security Agreement
EXHIBIT B-2 - Form of Equipment Security Agreement
EXHIBIT C - Form of Guarantee Assumption Agreement
EXHIBIT D-1 - Form of Opinion of Special New York Counsel to the Obligors
(Initial Extension of Credit)
EXHIBIT D-2 - Form of Opinion of Special New York Counsel to the Obligors (
Term Loans)
EXHIBIT E - Form of Opinion of Local Counsel
EXHIBIT F - Form of Opinion of Special New York Counsel to the Arranger
EXHIBIT G - Form of Confidentiality Agreement
- iv -
<PAGE>
CREDIT AGREEMENT dated as of October 30, 1996, between: PREMIER PARKS INC.,
a corporation duly organized and validly existing under the laws of the State of
Delaware (the "Borrower"); each of the Subsidiaries of the Borrower identified
under the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and each
Subsidiary of the Borrower that becomes a "Subsidiary Guarantor" after the date
hereof pursuant to Section 9.15(a) (individually, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors" and, together with the Borrower, the
"Obligors"); each of the lenders that is a signatory hereto identified under the
caption "LENDERS" on the signature pages hereto and each lender that becomes a
"Lender" after the date hereof pursuant to Section 12.06(b) (individually, a
"Lender" and, collectively, the "Lenders"); LEHMAN COMMERCIAL PAPER INC., as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent"); and LEHMAN COMMERCIAL
PAPER INC., a Delaware corporation, as arranger (in such capacity, the
"Arranger").
The Lenders have heretofore purchased from the lenders party to the
Existing Credit Agreement referred to below all of the right, title and interest
of such lenders in, to and under the loans made by such lenders to the Borrower
under the Existing Credit Agreement. The Borrower has now requested that the
Lenders extend credit to it, under the guarantee of the Subsidiary Guarantors,
in an aggregate principal or face amount not exceeding $115,000,000 to refinance
certain existing indebtedness, to enable certain acquisitions and capital
expenditures to be made by the Obligors, and to finance other general corporate
needs of the Obligors, and the Lenders are prepared to extend such credit upon
the terms and conditions hereof. It is the intention of the parties hereto that
this Agreement constitute a successor agreement to the Existing Credit
Agreement. Accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall have
the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa and all references herein to Sections, Exhibits and
Schedules shall be construed to refer to Sections of, and Exhibits and Schedules
to, this Agreement):
Credit Agreement
<PAGE>
- 2 -
"Acquisitions" means, collectively, the Initial Acquisitions and the
Subsequent Acquisitions.
"Affiliate" means any Person that directly or indirectly controls, or is
under common control with, or is controlled by, the Borrower and, if such Person
is an individual, any member of the immediate family (including parents, spouse,
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is
controlled by any such member or trust. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person that owns directly or
indirectly securities having 10% or more of the voting power for the election of
directors or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such corporation
or other Person. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or employee
of the Borrower or any of its Subsidiaries and (b) none of the Wholly Owned
Subsidiaries of the Borrower shall be Affiliates.
"Allocation Agreement" means the Allocation Agreement dated January 15,
1993 (by convention of the parties thereto, but undated in the executed copy of
said Agreement) by and among Trillium Corporation, the Borrower (as successor by
assignment, upon the consummation of the Elitch Gardens Acquisition, to Elitch
Gardens Company) and Public Service Company of Colorado, as the same has been
heretofore modified and supplemented and as the same shall, subject to Section
9.16, be further modified and supplemented and in effect from time to time.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower as the
office by which its Loans of such Type are to be made and maintained.
Credit Agreement
<PAGE>
- 3 -
"Applicable Rate" means for any day, with respect to any Base Rate Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"Base Rate Loans", "Eurodollar Loans" or "Commitment Fee", as the case may be,
based upon the Leverage Ratio as at the last day of the fiscal quarter most
recently ended as to which the Borrower has delivered financial statements
pursuant to Section 9.01, provided that, until financial statements for the
fiscal quarter ending June 30, 1997 shall have been delivered pursuant to said
Section 9.01, the Applicable Rate shall be that set forth below when the
Leverage Ratio is equal to 4.00 to 1:
================================================================================
Leverage Ratio Base Rate Loans Eurodollar Loans Commitment Fee
- --------------------------------------------------------------------------------
Greater than or 0.750% 2.250% 0.500%
equal to
4.50 to 1
- --------------------------------------------------------------------------------
Greater than or
equal to
4.00 to 1 and 0.500% 2.000% 0.500%
less than
4.50 to 1
- --------------------------------------------------------------------------------
Greater than or
equal to
3.50 to 1 and 0.250% 1.750% 0.375%
less than
4.00 to 1
- --------------------------------------------------------------------------------
Greater than or
equal to
3.00 to 1 and 0.000% 1.250% 0.375%
less than
3.50 to 1
- --------------------------------------------------------------------------------
Less than
3.00 to 1 0.000% 1.000% 0.250%
================================================================================
Each change in the "Applicable Rate" based upon any change in the Leverage
Ratio, shall become effective for purposes of the accrual of interest and
commitment fees hereunder on the date three Business Days after the delivery to
the Administrative Agent and each Lender of the financial statements of the
Borrower and its Subsidiaries for the most recently ended fiscal quarter
pursuant to Section 9.01, and shall remain effective for such purpose until
three Business Days after the next delivery of such financial statements to the
Administrative Agent and each Lender hereunder, provided that, notwithstanding
the foregoing, the Applicable Rate shall be the highest rates provided for in
the above schedule for any period during which either (i) an Event of Default
shall have occurred and be continuing or (ii) the
Credit Agreement
<PAGE>
- 4 -
Borrower shall be in default of its obligation to deliver financial statements
for any fiscal quarter by the times specified in Section 9.01 (but upon the cure
or waiver of any such Event of Default or default, this proviso shall no longer
be applicable until another such Event of Default or default shall occur).
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as amended
from time to time.
"Base Rate" means, for any day, a rate per annum equal to the higher of (a)
the Federal Funds Rate for such day plus 1/2% and (b) the Prime Rate for such
day. Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the time of
such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at rates based upon the
Base Rate.
"Basic Documents" means, collectively, the Loan Documents, the Acquisition
Agreements, the Allocation Agreement and the Leases.
"Basle Accord" means the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
"Business Day" means any day (a) on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"California Leases" means, (a) the Agreement entered into October 14, 1992
between the California Exposition and State Fair, a State of California entity,
and FRE, Inc., as amended by Second Amendment to Agreement dated July 19, 1996
and (b) the Ground Lease dated as of September 28, 1994 between The City of
Concord, a public body, corporate and politic, and Concord Entertainment
Company, in each case as such Agreement or Ground
Credit Agreement
<PAGE>
- 5 -
Lease has heretofore been and shall, subject to Section 9.16, be further
modified and supplemented and in effect from time to time.
"Capital Expenditures" means, for any period, expenditures (including,
without limitation, the aggregate amount of Capital Lease Obligations incurred
during such period) made by the Borrower or any of its Subsidiaries to acquire
or construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP.
"Capital Lease Obligations" means, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Capital Transaction" means a purchase of equipment, or acquisition of a
Park, that is financed in whole or in part (or which the Borrower anticipates
financing in whole or in part) with the proceeds of Facility A or Facility B
Term Loans hereunder, as contemplated in Section 9.14.
"Casualty Event" means, with respect to any Property of any Person, any
loss of or damage to, or any condemnation or other taking of, such Property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Class" has the meaning assigned to such term in Section 1.03.
"Closing Date" means the date upon which the initial extension of credit
hereunder is made.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral Account" has the meaning assigned to such term in the Revolving
Credit Security Agreement.
"Commitments" means, collectively, the Revolving Credit Commitments, the
Facility A Term Loan Commitments and the Facility B Term Loan Commitments.
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"Concord Acquisition" means the acquisition by the Borrower (which may be
effected indirectly through the acquisition by the Borrower of a Subsidiary
formed to hold the assets to be acquired, followed by the immediate liquidation
of such Subsidiary) from Concord Entertainment Company, of the Waterworld USA
Amusement Park (and related assets) in Concord, California, pursuant to the
Concord Acquisition Agreement.
"Concord Acquisition Agreement" means the Asset Purchase Agreement dated as
October 10, 1996, by and among Premier Parks Acquisition Corp., the Borrower,
Concord Entertainment Company, FRE, Inc. (Family Recreational Enterprises,
Inc.), R&B Entertainment, LLC, and certain shareholders and members of FRE, Inc.
and R&B Entertainment, LLC, as said Asset Purchase Agreement shall, subject to
Section 9.16, be modified and supplemented and in effect from time to time.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.09 of a Eurodollar Loan from one Interest Period to the
next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" refer to a conversion pursuant to
Section 2.09 of one Type of Loans into another Type of Loans, which may be
accompanied by the transfer by a Lender (at its sole discretion) of a Loan from
one Applicable Lending Office to another.
"Debt Issuance" means any issuance or sale by the Borrower or any of its
Subsidiaries after the Closing Date of any debt securities, excluding, however,
any Indebtedness incurred pursuant to Section 9.07(d) or 9.07(e).
"Debt Service" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the amount, if any, by which the
aggregate principal amount of Revolving Credit Loans outstanding hereunder at
the beginning of such period shall exceed the aggregate amount of the Revolving
Credit Commitments scheduled to be in effect at the end of such period after
giving effect to any reductions of such Commitments scheduled to occur during
such period pursuant to Section 2.04(a) plus (b) all regularly scheduled
payments or regularly scheduled mandatory prepayments of principal of any other
Indebtedness (including the Facility A Term Loans and Facility B Term Loans
hereunder and the principal component of any payments in respect of Capital
Lease Obligations, but excluding any prepayments made pursuant to Section 2.10)
made during such period plus (c) all Interest Expense for such period.
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"Debt Service Coverage Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Debt Service for such period.
"Default" means an Event of Default or an event that with notice or lapse
of time or both would become an Event of Default.
"Disposition" means any sale, assignment, transfer or other disposition of
any Property (whether now owned or hereafter acquired) by the Borrower or any of
its Subsidiaries to any other Person excluding (a) any sale, assignment,
transfer or other disposition of any inventory or other Property sold or
disposed of in the ordinary course of business and (b) during any fiscal year,
the first $1,000,000 of sales of used equipment or other Property not used in
the business of the Borrower and its Subsidiaries.
"Disposition Investment" means, with respect to any Disposition, any
promissory notes or other evidences of indebtedness or Investments received by
the Borrower or any of its Subsidiaries in connection with such Disposition.
"Dollars" and "$" means lawful money of the United States of America.
"EBITDA" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined before interest
income or expense and extraordinary or unusual items (and excluding all barter
and trade transactions): (a) operating income (or loss) for such period, plus
(b) depreciation, amortization and other non-cash charges (to the extent
deducted in determining operating income) for such period.
Notwithstanding the foregoing, (i) if during any period for which EBITDA is
being determined the Borrower shall have consummated any Acquisition or
Disposition then, for all purposes of this Agreement (other than for purposes of
the definition of Excess Cash Flow), EBITDA shall be determined on a pro forma
basis as if such Acquisition or Disposition had been made or consummated on the
first day of such period and (ii) when determining EBITDA for any period on a
pro forma basis as provided in the preceding clause (i) ending after the
consummation of any Acquisition, there shall be added (or subtracted) the
respective amounts for such Acquisition (and any
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other Acquisitions consummated prior to the last day of such period) set forth
(x) in the case of any Initial Acquisition, in Schedule VII opposite the last
day of such period and (y) in the case of any Subsequent Acquisition, in a
supplement to Schedule VII agreed to at the time of such Subsequent Acquisition
pursuant to Section 9.05(d)(iv)(F).
"Elitch Gardens Acquisition" means the acquisition by the Borrower (which
may be effected indirectly through the acquisition by the Borrower of a
Subsidiary formed to hold the assets to be acquired, followed by the immediate
liquidation of such Subsidiary) from Elitch Gardens Company of the Elitch
Gardens Amusement Park (and related assets) in Denver, Colorado, pursuant to the
Elitch Gardens Acquisition Agreement.
"Elitch Gardens Acquisition Agreement" means the Asset Purchase Agreement
dated as September 23, 1996, by and among Premier Parks Acquisition Corp., the
Borrower, Elitch Gardens Company, Chilcott Entertainment Corp and Hensel Phelps
Construction Co., as said Asset Purchase Agreement shall, subject to Section
9.16, be modified and supplemented and in effect from time to time.
"Environmental Claim" means, with respect to any Person, any written
notice, claim, demand or other communication (collectively, a "claim") by any
other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to natural resources
or other Property, personal injuries, fines or penalties arising out of, based
on or resulting from (i) the presence, or Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "Environmental Claim" shall include, without
limitation, any claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, as a result of
any of the foregoing.
"Environmental Laws" means any and all present and future Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, in each
case as now or hereafter in effect, relating to the regulation or protection of
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human health, safety or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"Equipment Security Agreement" means a Security Agreement substantially in
the form of Exhibit B-2 between the Borrower and the Administrative Agent,
covering Property or equipment acquired by the Borrower after the date hereof in
a Capital Transaction in whole or in part with the proceeds of a Sub-Series of
Facility A or Facility B Term Loans as collateral security for the obligations
of the Borrower hereunder in respect of such Sub-Series (or, to the extent
permitted under Section 9.15(e), constitute collateral security for the other
obligations of the Obligors hereunder), as said Security Agreement shall be
modified and supplemented and in effect from time to time.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.
"ERISA Event" means any of the following events or conditions:
(a) any reportable event, as defined in Section 4043(c) of ERISA and
the regulations issued
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thereunder, with respect to a Plan, as to which the PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section 412(m) of the
Code or Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d) of the Code);
and any request for a waiver under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of intent
to terminate any Plan or any action taken by the Borrower or an ERISA
Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been taken by
the PBGC with respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by
the Borrower or any ERISA Affiliate that results in liability under Section
4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the
Borrower or any ERISA Affiliate of notice from a Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under Section 4041A
of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(f) the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if the Borrower
or an ERISA Affiliate fails to timely provide security to the Plan in
accordance with the provisions of such Sections.
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"Eurodollar Base Rate" means, with respect to any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) reported on the date two Business Days prior to the
first day of such Interest Period on Telerate Access Service Page 3750 (British
Bankers Association Settlement Rate) as the London Interbank Offered Rate for
Dollar deposits having a term comparable to such Interest Period and in an
amount of $1,000,000 or more (or, if said Page shall cease to be publicly
available or if the information contained on said Page, in the sole judgment of
the Administrative Agent, shall cease to accurately reflect such London
Interbank Offered Rate, the Eurodollar Base Rate means the rate reported by any
publicly available source of similar market data selected by the Administrative
Agent that, in the sole judgment of the Administrative Agent, accurately
reflects such London Interbank Offered Rate).
"Eurodollar Loans" means Loans that bear interest at rates based on rates
referred to in the definition of "Eurodollar Base Rate" in this Section 1.01.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Administrative Agent to be equal to the Eurodollar Base Rate
for such Interest Period divided by 1 minus the Reserve Requirement (if any) for
such Interest Period.
"Event of Default" has the meaning assigned to such term in Section 10.
"Excess Cash Flow" means, for any period, the excess of (a) EBITDA for such
period over (b) the sum of (i) the aggregate amount of Debt Service for such
period plus (ii) Capital Expenditures made during such period (except for any
such Capital Expenditures to the extent financed with the proceeds of the
issuance of equity capital by the Borrower after the date hereof) plus (iii) the
aggregate amount paid, or required to be paid, in cash in respect of income
taxes for such fiscal year.
"Existing Credit Agreement" means the Credit Agreement dated as of August
15, 1995 among the Borrower, the lenders named therein and The Chase Manhattan
Bank (successor by merger to Chemical Bank), as Administrative Agent and
Collateral Agent, as said Credit Agreement shall be modified and supplemented
and in effect from time to time.
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"Existing Parks" means those amusement and attraction parks listed in Part
A of Schedule IV.
"Facility A Lenders" means (a) on the date hereof, the Lenders having
Facility A Term Loan Commitments on the signature pages hereof and (b)
thereafter, the Lenders from time to time holding Facility A Term Loans and
Facility A Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Facility A Term Loan Commitment" means, for each Facility A Lender, the
obligation of such Lender to make Facility A Term Loans in an amount up to but
not exceeding the amount set forth opposite the name of such Lender on the
signature pages hereof under the caption "Facility A Term Loan Commitment" or,
in the case of any Person that becomes a Facility A Lender pursuant to an
assignment permitted under Section 12.06(b), as specified in the respective
instrument of assignment pursuant to which such assignment is effected (in each
case as the same may be reduced or increased pursuant to an assignment permitted
under Section 12.06(b), or reduced from time to time pursuant to Section 2.04 or
2.10). The original aggregate principal amount of the Facility A Term Loan
Commitments is $25,000,000.
"Facility A Term Loan Notes" means the promissory notes provided for by
Section 2.08(b) and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented and in
effect from time to time.
"Facility A Term Loans" means the loans provided for by Section 2.01(b),
which may be Base Rate Loans and/or Eurodollar Loans.
"Facility B Lenders" means (a) on the date hereof, the Lenders having
Facility B Term Loan Commitments on the signature pages hereof and (b)
thereafter, the Lenders from time to time holding Facility B Term Loans and
Facility B Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Facility B Term Loan Commitment" means, for each Facility B Lender, the
obligation of such Lender to make Facility B Term Loans in an amount up to but
not exceeding the amount set forth opposite the name of such Lender on the
signature pages hereof under the caption "Facility B Term Loan Commitment" or,
in the case of any Person that becomes a Facility B Lender pursuant to an
assignment permitted under Section
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12.06(b), as specified in the respective instrument of assignment pursuant to
which such assignment is effected (in each case as the same may be reduced or
increased pursuant to an assignment permitted under Section 12.06(b), or reduced
from time to time pursuant to Section 2.04 or 2.10). The original aggregate
principal amount of the Facility B Term Loan Commitments is $60,000,000.
"Facility B Term Loan Notes" means the promissory notes provided for by
Section 2.08(c) and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented and in
effect from time to time.
"Facility B Term Loans" means the loans provided for by Section 2.01(c),
which may be Base Rate Loans and/or Eurodollar Loans.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published for any
Business Day, the Federal Funds Rate for such Business Day shall be the average
rate charged to LCPI on such Business Day on such transactions as determined by
the Administrative Agent.
"Fixed Charges Coverage Ratio" means, as at any date, the ratio of (a) the
sum of (i) EBITDA for the period of four consecutive fiscal quarters ending on
or most recently ended prior to such date plus (ii) the amount (if any) by which
the aggregate amount of cash and Permitted Investments of the Borrower and its
Subsidiaries, together with the aggregate unutilized amount of the Revolving
Credit Commitments, as at the last day of such period exceeds $40,000,000
($25,000,000 after the Revolving Credit Commitment Reduction Date) to (b) the
sum of (i) the aggregate amount of Debt Service for such period plus (ii)
Capital Expenditures made during such period (except for any such Capital
Expenditures to the extent financed with the proceeds of the issuance of equity
capital by the Borrower after the date hereof) plus (iii) the aggregate amount
paid, or
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required to be paid, in cash in respect of income taxes for such period.
"FRE Acquisition" means the acquisition by the Borrower (which may be
effected indirectly through the acquisition by the Borrower of a Subsidiary
formed to hold the assets to be acquired, followed by the immediate liquidation
of such Subsidiary) from FRE, Inc. (Family Recreational enterprises, Inc.) of
the Waterworld USA and Paradise Island Amusement Parks (and related assets) in
Sacramento, California, pursuant to the FRE Acquisition Agreement.
"FRE Acquisition Agreement" means the Asset Purchase Agreement dated as
October 10, 1996, by and among Premier Parks Acquisition Corp., the Borrower,
FRE, Inc. (Family Recreational Enterprises, Inc.) and certain shareholders of
FRE, Inc., as said Asset Purchase Agreement shall, subject to Section 9.16, be
modified and supplemented and in effect from time to time.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those that, in accordance with the last sentence of Section
1.02(a), are to be used in making the calculations for purposes of determining
compliance with this Agreement.
"Great Escape Acquisition" means the acquisition by the Borrower (which may
be effected indirectly through the acquisition by the Borrower of a Subsidiary
formed to hold the assets to be acquired, followed by the immediate liquidation
of such Subsidiary) from Storytown USA, Inc. and Fantasy Rides Corporation of
the Great Escape attractions park, and related assets, in Lake George, New York,
pursuant to the Great Escape Acquisition Agreement.
"Great Escape Acquisition Agreement" means the Asset Purchase Agreement
dated as August 23, 1996, by Premier Parks Acquisition Corp., the Borrower,
Storytown USA, Inc., Fantasy Rides Corporation and Charles R. Wood, as said
Asset Purchase Agreement shall, subject to Section 9.16, be modified and
supplemented and in effect from time to time.
"Guarantee" means a guarantee, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise to
be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person,
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or an agreement to purchase, sell or lease (as lessee or lessor) Property,
products, materials, supplies or services primarily for the purpose of enabling
a debtor to make payment of such debtor's obligations or an agreement to assure
a creditor against loss, and including, without limitation, causing a bank or
other financial institution to issue a letter of credit or other similar
instrument for the benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The terms "Guarantee"
and "Guaranteed" used as verbs have the correlative meanings.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit C by an entity that, pursuant to Section
9.15(a), is required to become a "Subsidiary Guarantor" hereunder in favor of
the Administrative Agent.
"Hazardous Material" means, collectively, (a) any petroleum or petroleum
products, flammable materials, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's"), (b) any chemicals or other materials or
substances that are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement. For
purposes hereof, the "credit exposure" at any time of any Person under an
Hedging Agreement to which such Person is a party shall be determined at such
time in accordance with the standard methods of calculating credit exposure
under similar arrangements as prescribed from time to time by the Administrative
Agent, taking into account potential interest rate movements and the respective
termination provisions and notional principal amount and term of such Hedging
Agreement.
"Inactive Subsidiary" means any Subsidiary of the Borrower that (a) has
aggregate assets with a value not in excess of $5,000 and (b) conducts no
business or other operations.
Credit Agreement
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"Indebtedness" means, for any Person: (a) obligations created, issued or
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
within 180 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations
of such Person; and (f) Indebtedness of others Guaranteed by such Person. The
Indebtedness of any Person shall include the Indebtedness of any partnership in
which such Person is a general partner to the extent such Indebtedness is
recourse, provided that if such Person's liability for such Indebtedness is
contractually limited, only such Person's share thereof shall be so included.
Anything herein to the contrary notwithstanding, obligations under Hedging
Agreements shall not constitute Indebtedness.
"Information Memorandum" means the Confidential Information Memorandum
prepared by the Borrower in connection with the syndication of the Commitments
provided hereunder.
"Initial Acquisitions" means, collectively, the Concord Acquisition, the
Elitch Gardens Acquisition, the FRE Acquisition and the Great Escape
Acquisition.
"Interest Coverage Ratio" means, as at any date, the ratio of (a) EBITDA
for the period of four consecutive fiscal quarters ending on or most recently
ended prior to such date to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations but excluding any capitalized
financing fees paid during such period that are to be charged to future periods)
accrued or capitalized during
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such period (whether or not actually paid during such period) plus (b) the net
amount payable (or minus the net amount receivable) under Hedging Agreements
during such period (whether or not actually paid or received during such
period).
Notwithstanding the foregoing, if during any period for which Interest
Expense is being determined the Borrower shall have consummated any Acquisition
or Disposition then, for all purposes of this Agreement (other than for purposes
of the definition of Excess Cash Flow), Interest Expense shall be determined on
a pro forma basis as if such Acquisition or Disposition (and any Indebtedness
incurred by the Borrower or any of its Subsidiaries in connection with such
Acquisition or repaid as a result of such Disposition) had been made or
consummated (and such Indebtedness incurred or repaid) on the first day of such
period and as if the interest rate applicable to any incremental Indebtedness of
the Borrower and its Subsidiaries is equal to the interest rate applicable to
Indebtedness of the Borrower and its Subsidiaries in fact outstanding during
such period.
"Interest Period" means, for any Eurodollar Loan, each period commencing on
the date such Eurodollar Loan is made or Converted from a Loan of another Type
or (in the event of a Continuation) the last day of the next preceding Interest
Period for such Loan and (subject to the provisions of Section 2.01(d)) ending
on the numerically corresponding day in the first, second, third or sixth
calendar month thereafter (or such shorter periods as, prior to the date
referred to in Section 2.01(d), shall be agreed to by each Lender), as the
Borrower may select as provided in Section 4.05, except that each Interest
Period that commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall (unless each of the Lenders shall otherwise
agree) end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing:
(i) no Interest Period for any Revolving Credit Loan may commence
before and end after any Revolving Credit Commitment Reduction Date unless,
after giving effect thereto, the aggregate principal amount of Revolving
Credit Loans having Interest Periods that end after such Revolving Credit
Commitment Reduction Date shall be equal to or less than the aggregate
principal amount of Revolving Credit Loans scheduled to be outstanding
after giving effect to the payments of principal required to be made on
such Revolving Credit Commitment Reduction Date;
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(ii) no Interest Period for any Facility A Term Loan may commence
before and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Facility A Term Loans having
Interest Periods that end after such Principal Payment Date shall be equal
to or less than the aggregate principal amount of the Facility A Term Loans
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date;
(iii) no Interest Period for any Facility B Term Loan may commence
before and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Facility B Term Loans having
Interest Periods that end after such Principal Payment Date shall be equal
to or less than the aggregate principal amount of the Facility B Term Loans
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date;
(iv) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(v) notwithstanding clauses (i), (ii) and (iii) above, no Interest
Period shall (except as otherwise provided in the first sentence of this
definition) have a duration of less than one month and, if the Interest
Period for any Eurodollar Loan would otherwise be a shorter period, such
Loan shall not be available hereunder for such period.
"Investment" means, for any Person: (a) the acquisition (whether for cash,
Property, services or securities or otherwise) of capital stock, bonds, notes,
debentures, partnership or other ownership interests or other securities of any
other Person or any agreement to make any such acquisition (including, without
limitation, any "short sale" or any sale of any securities at a time when such
securities are not owned by the Person entering into such sale); (b) the making
of any deposit with, or advance, loan or other extension of credit to, any other
Person (including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to
such Person), but excluding any such advance, loan or extension of credit having
a stated term not exceeding 90 days arising in connection with the sale of
inventory, supplies or patron services by such Person in the
Credit Agreement
<PAGE>
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ordinary course of business, and excluding also any deposit made by such Person
as an advance payment in respect of a Capital Expenditure (to the extent the
making of such Capital Expenditure will not result in a violation of any of the
provisions of Section 9.10); (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Hedging Agreement.
"Issuing Lender" means LCPI as the issuer of Letters of Credit under
Section 2.03, together with its successors and assigns in such capacity.
"LCPI" means Lehman Commercial Paper Inc., a Delaware corporation.
"Lease" means, collectively, the California Leases and the Wyandot Lease.
"Letter of Credit" has the meaning assigned to such term in Section 2.03.
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Letter of Credit Interest" means, for each Revolving Credit Lender, such
Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" means, without duplication, at any time and in
respect of any Letter of Credit, the sum of (a) the undrawn face amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit
Credit Agreement
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Lender (other than the Issuing Lender) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the related
Letter of Credit under Section 2.03, and the Issuing Lender shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to the acquisition by the
Revolving Credit Lenders other than the Issuing Lender of their participation
interests under said Section 2.03.
"Leverage Ratio" means, as at any date, the ratio of (a) Total Debt as at
such date to (b) EBITDA for the period of four consecutive fiscal quarters
ending on, or most recently ended prior to such date.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Loan Documents" means, collectively, this Agreement, the Notes, the Letter
of Credit Documents and the Security Documents.
"Loans" means, collectively, the Revolving Credit Loans, the Facility A
Term Loans and the Facility B Term Loans.
"Majority Facility A Lenders" means, at any time, Facility A Lenders having
at least 51% of the aggregate amount of the Facility A Term Loan Commitments at
such time (or, if the Facility A Term Loan Commitments shall have terminated,
Lenders holding at least 51% of the aggregate unpaid principal amount of the
Facility A Term Loans at such time).
"Majority Facility B Lenders" means, at any time, Facility B Lenders having
at least 51% of the aggregate amount of the Facility B Term Loan Commitments at
such time (or, if the Facility B Term Loan Commitments shall have terminated,
Lenders holding at least 51% of the aggregate unpaid principal amount of the
Facility B Term Loans at such time).
"Majority Lenders" means, at any time, Lenders having at least 51% of the
sum of (a) the aggregate amount of the
Credit Agreement
<PAGE>
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Revolving Credit Commitments at such time (or, if the Revolving Credit
Commitments shall have terminated, the sum of (i) the aggregate unpaid principal
amount of the Revolving Credit Loans at such time plus (ii) the aggregate amount
of all Letter of Credit Liabilities at such time) plus (b) the aggregate amount
of the Facility A Term Loan Commitments at such time (or, if the Facility A Term
Loan Commitments shall have terminated, the aggregate unpaid principal amount of
the Facility A Term Loans at such time) plus (c) the aggregate amount of the
Facility B Term Loan Commitments at such time (or, if the Facility B Term Loan
Commitments shall have terminated, the aggregate unpaid principal amount of the
Facility B Term Loans at such time).
"Majority Revolving Credit Lenders" means, at any time, Revolving Credit
Lenders having at least 51% of the aggregate amount of the Revolving Credit
Commitments at such time (or, if the Revolving Credit Commitments shall have
terminated, Lenders holding at least 51% of the sum of (a) the aggregate unpaid
principal amount of the Revolving Credit Loans plus (b) the aggregate amount of
all Letter of Credit Liabilities.
"Margin Stock" means "margin stock" within the meaning of Regulations G, T,
U and X.
"Material Adverse Effect" means a material adverse effect on (a) the
Property, business, operations, financial condition, prospects, liabilities or
capitalization of the Borrower and its Subsidiaries taken as a whole, (b) the
validity or enforceability of any of the Loan Documents, (c) the rights and
remedies of the Lenders and the Administrative Agent under any of the Loan
Documents or (d) the timely payment of the principal of or interest on the
Loans, Reimbursement Obligations or other amounts payable in connection
therewith.
"Mortgages" means, collectively, one or more assignments of lease,
mortgages, deeds of trust, deeds to secure debt and similar instruments executed
by the Borrower in favor of the Administrative Agent (or a trustee for the
benefit of the Administrative Agent), in each case in such form as shall be
satisfactory to the Administrative Agent, which instruments shall either (a)
cover real property or equipment acquired in a Capital Transaction after the
date hereof with the proceeds of any Sub- Series of Facility A or Facility B
Term Loans and constitute collateral security for the obligations of the
Borrower hereunder in respect of such Sub-Series of Loans or (b) cover real
property of the Borrower and its Subsidiaries now owned or hereafter acquired
and constitute collateral security for the obligations of the Obligors hereunder
in respect of Revolving Credit Loans
Credit Agreement
<PAGE>
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(or, to the extent permitted under Section 9.15(e), constitute collateral
security for the other obligations of the Obligors hereunder).
"Multiemployer Plan" means a multiemployer plan defined as such in Section
3(37) of ERISA to which contributions have been made by the Borrower or any
ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Borrower and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Borrower and its Subsidiaries in
connection therewith and (B) contractually- required repayments of
Indebtedness consisting of Capital Lease Obligations in existence on the
date hereof and covering the respective Property that is the subject of
such Casualty Event, and any income and transfer taxes payable by the
Borrower or any of its Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Debt Issuance, the aggregate amount of all
cash received by the Borrower and its Subsidiaries in respect of such Debt
Issuance net of reasonable expenses incurred by the Borrower and its
Subsidiaries in connection therewith.
"Net Cash Payments" means, with respect to any Disposition, the aggregate
amount of all cash payments received by the Borrower and its Subsidiaries
directly or indirectly in connection with such Disposition, whether at the time
of such Disposition or after such Disposition under deferred payment
arrangements or Investments entered into or received in connection with such
Disposition (including, without limitation, Disposition Investments); provided
that
(a) Net Cash Payments shall be net of (i) the amount of any legal,
title, transfer and recording tax expenses, commissions and other fees and
expenses payable by the Borrower and its Subsidiaries in connection with
such Disposition and (ii) any Federal, state and local income or
Credit Agreement
<PAGE>
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other taxes estimated to be payable by the Borrower and its Subsidiaries as
a result of such Disposition, but only to the extent that on the date of
such Disposition the Borrower delivers a certificate of a senior financial
officer of the Borrower setting forth a calculation of the amount of such
estimated taxes; and
(b) Net Cash Payments shall be net of any contractually-required
repayments of Indebtedness consisting of Capital Lease Obligations in
existence on the date hereof and covering the respective Property that is
the subject of such Disposition.
"New Senior Notes" means Indebtedness of the Borrower evidenced by notes
issued after the date hereof in accordance with the provisions of Section
9.07(e) that constitute senior Indebtedness of the Borrower (i.e. do not
constitute Subordinated Indebtedness).
"1995 Senior Notes" means the 12% Senior Notes due 2003 issued by the
Borrower pursuant to the 1995 Senior Notes Indenture.
"1995 Senior Notes Indenture" means the Indenture dated as of August 15,
1995 between the Borrower and The Chase Manhattan Bank (as successor to United
States Trust Company of New York), as trustee, as the same has heretofore been
modified pursuant to a Supplement No. 1 dated as of November 9, 1995, and as the
same shall, subject to Section 9.16, be further modified and supplemented and in
effect from time to time.
"Notes" means, collectively, the Revolving Credit Notes, the Facility A
Term Loan Notes and the Facility B Term Loan Notes.
"Park" means, collectively, the Existing Parks and any other amusement or
attraction park acquired by any of the Obligors after the date hereof.
"Park Level EBITDA" means, for any period for any Park, the sum, for such
Park (determined on a consolidated basis without duplication in accordance with
GAAP), of the following, in each case determined before interest income or
expense and extraordinary or unusual items (and excluding all barter and trade
transactions): (a) operating income (or loss) of such Park for such period, plus
(b) depreciation, amortization and other non-cash charges (to the extent
deducted in determining operating income) of such Park for such period plus (c)
in the case of any
Credit Agreement
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Park acquired pursuant to an Initial Acquisition, the respective amounts for
such Park set forth in Schedule VII opposite the last day of such period.
"Park Level Leverage Ratio" means, as at any date for any particular Park,
the ratio of (a) Park Level Secured Debt for such Park as at such date to (b)
Park Level EBITDA for the period of four consecutive fiscal quarters ending on,
or most recently ended prior to such date.
"Park Level Secured Debt" means, in respect of any Park, all Indebtedness
(including, if applicable, Facility A and Facility B Term Loans hereunder)
secured by a Lien on real property or equipment of such Park.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Holders" means Hanseatic Corporation, Robert J. Gellert, Michael
E. Gellert, Jack Tyrell and each of their respective Affiliates.
"Permitted Investments" means: (a) direct obligations of the United States
of America, or of any agency thereof, or obligations guaranteed as to principal
and interest by the United States of America, or of any agency thereof, in
either case maturing not more than one year from the date of acquisition
thereof; (b) certificates of deposit, time deposits and money market deposit
accounts issued by any bank or trust company organized under the laws of the
United States of America or any state thereof and having capital, surplus and
undivided profits of at least $500,000,000, maturing not more than one year from
the date of acquisition thereof; (c) commercial paper rated A-1 or better or P-1
by Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies,
Inc., or Moody's Investors Services, Inc., respectively, maturing not more than
one year from the date of acquisition thereof; and (d) fully collateralized
repurchase agreements with a term of not more than one year for securities
described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (b) above; in each case so long as
the same (x) provide for the payment of principal and interest (and not
principal alone or interest alone) and (y) are not subject to any contingency
regarding the payment of principal or interest.
"Permitted Reinvestment Transaction" means either (a) an acquisition
permitted under Section 9.05(d)(iv) or a Capital
Credit Agreement
<PAGE>
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Expenditure permitted under Section 9.05(b), or (b) a reimbursement of the
Borrower for monies expended by the Borrower within the previous 180 days with
respect to any such acquisition or Capital Expenditure.
"Person" means any individual, corporation, company, voluntary association,
partnership, limited liability company, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" means an employee benefit or other plan established or maintained by
the Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA,
other than a Multiemployer Plan.
"Post-Default Rate" means a rate per annum equal to 2% plus the Base Rate
as in effect from time to time plus the Applicable Margin for Base Rate Loans,
provided that, with respect to principal of a Eurodollar Loan that shall become
due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise) on a day other than the last day of the Interest Period
therefor, the "Post-Default Rate" shall be, for the period from and including
such due date to but excluding the last day of such Interest Period, 2% plus the
interest rate for such Loan as provided in Section 3.02(b) and, thereafter, the
rate provided for above in this definition.
"Prime Rate" means the rate of interest from time to time announced by
Citibank, N.A., at its principal office as its "base lending rate" of interest.
"Principal Payment Dates" means the Quarterly Dates falling on or nearest
to January 31, April 30, July 31 and October 31 of each year, commencing with
July 31, 1998, through and including October 31, 2001.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Qualified Preferred Stock" means shares of preferred stock issued by the
Borrower after the date hereof that does not require the Borrower or any of its
Subsidiaries to make mandatory payments of cash dividends unless the Borrower
may, at its option, elect to make such payments by issuing additional shares of
such preferred stock (or by having the amount of such payments be added to the
stated liquidation value, conversion price or
Credit Agreement
<PAGE>
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optional redemption price of such preferred stock and not be paid in cash).
"Quarterly Dates" means the last Business Day of January, April, July and
October in each year, the first of which shall be the first such day after the
date hereof.
"Regulations A, D, G, T, U and X" means, respectively, Regulations A, D, G,
T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" means, with respect to any Lender, any change after the
date hereof in Federal, state or foreign law or regulations (including, without
limitation, Regulation D) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks including such
Lender of or under any Federal, state or foreign law or regulations (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reimbursement Obligations" means, at any time, the obligations of the
Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
"Reserve Requirement" means, for any Interest Period for any Eurodollar
Loan, the average maximum rate at which reserves (including, without limitation,
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to
Credit Agreement
<PAGE>
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which the Eurodollar Base Rate for any Interest Period for any Eurodollar Loans
is to be determined as provided in the definition of "Eurodollar Base Rate" in
this Section 1.01 or (ii) any category of extensions of credit or other assets
that includes Eurodollar Loans.
"Reserved Commitment Amount" has the meaning assigned to such term in
Section 2.01(a).
"Restricted Payment" means dividends (in cash, Property or obligations) on,
or other payments or distributions on account of, or the setting apart of money
for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of stock of the
Borrower or of any warrants, options or other rights to acquire the same (or to
make any payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to the fair market or equity value
of the Borrower or any of its Subsidiaries), but excluding dividends payable
solely in shares of common stock of the Borrower and dividends on shares of
Qualified Preferred Stock payable in additional shares of Qualified Preferred
Stock.
"Revolving Credit Lenders" means (a) on the date hereof, the Lenders having
Revolving Credit Commitments on the signature pages hereof and (b) thereafter,
the Lenders from time to time holding Revolving Credit Loans and Revolving
Credit Commitments after giving effect to any assignments thereof permitted by
Section 12.06(b).
"Revolving Credit Commitment" means, as to each Revolving Credit Lender,
the obligation of such Lender to make Revolving Credit Loans, and to issue or
participate in Letters of Credit pursuant to Section 2.03, in an aggregate
principal or face amount at any one time outstanding up to but not exceeding the
amount set forth opposite the name of such Lender on the signature pages hereof
under the caption "Revolving Credit Commitment" or, in the case of a Person that
becomes a Revolving Credit Lender pursuant to an assignment permitted under
Section 12.06(b), as specified in the respective instrument of assignment
pursuant to which such assignment is effected (in each case as the same may be
reduced or increased pursuant to an assignment permitted under Section 12.06(b),
or reduced from time to time pursuant to Section 2.04 or 2.10). The original
aggregate principal amount of the Revolving Credit Commitments is $30,000,000.
Credit Agreement
<PAGE>
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"Revolving Credit Commitment Percentage" means, with respect to any
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Reduction Dates" means, collectively, (a) the
Quarterly Date falling on or nearest to October 31, 2001, and (b) the Revolving
Credit Commitment Termination Date.
"Revolving Credit Commitment Termination Date" means the Quarterly Date
falling on or nearest to October 31, 2002.
"Revolving Credit Loans" means the loans provided for in Section 2.01(a),
which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" means the promissory notes provided for by Section
2.08(a) and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time.
"Revolving Credit Security Agreement" means a Security Agreement
substantially in the form of Exhibit B-1 between the Obligors and the
Administrative Agent, covering all tangible and intangible personal Property of
the Obligors either owned on the date hereof or acquired after the date hereof
as collateral security for the obligations of the Obligors hereunder in respect
of the Revolving Credit Loans, as said Security Agreement shall be modified and
supplemented and in effect from time to time, provided that any such collateral
security on Property or equipment acquired in a Capital Transaction in whole or
in part with the proceeds of Facility A or Facility B Term Loans, shall be
junior to the respective security interest in such Property or equipment
securing such Term Loans pursuant to the respective Equipment Security Agreement
executed and delivered in connection with the making of such Term Loans.
"Security Documents" means, collectively, the Revolving Credit Security
Agreement, each Equipment Security Agreement, each Mortgage and all Uniform
Commercial Code financing statements required by any of such instruments to be
filed with respect to the security interests in personal Property and fixtures
created pursuant thereto.
Credit Agreement
<PAGE>
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"Subordinated Indebtedness" means Indebtedness of the Borrower incurred in
accordance with Section 9.11.
"Subsequent Acquisition Agreements" means each agreement pursuant to which
a Subsequent Acquisition shall be consummated, as the same shall, subject to
Section 9.16, be modified and supplemented and in effect from time to time.
"Subsequent Acquisitions" means any acquisition permitted under Section
9.05(d)(iv).
"Sub-Series" has the meaning assigned to such term in Section 1.03.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership or
other entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation,
partnership or other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Term Loan Commitment Termination Date" means the Quarterly Date falling on
or nearest to April 30, 1998.
"Term Loans" means, collectively, the Facility A Term Loans and the
Facility B Term Loans.
"Total Debt" means, as at any date, the aggregate amount of all
Indebtedness of the Borrower and its Subsidiaries at such date (determined on a
consolidated basis without duplication in accordance with GAAP).
"Type" has the meaning assigned to such term in Section 1.03.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other entity of which all
of the equity securities or other ownership interests (other than, in the case
of a corporation, directors' qualifying shares) are directly or indirectly owned
or
Credit Agreement
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controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Wyandot Lease" means the Management Agreement and Agreement for Use and
Occupancy of an Amusement Park, and a Proposed Water Park, and the Occupancy and
Use of Real and Personal Property, dated November 10, 1983 between Columbus
Zoological Park Association, Funtime, Inc. and Darien Lake Theme Park and
Camping Resort, Inc. (as successor to Darien Lake Fun Country, Inc.), as the
same shall, subject to Section 9.16, be modified and supplemented and in effect
from time to time.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall (unless otherwise disclosed to the Lenders in writing at the
time of delivery thereof in the manner described in paragraph (b) of this
Section 1.02) be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which, prior
to the delivery of the first financial statements under Section 9.01, means the
audited financial statements as at December 31, 1995 referred to in Section
8.02). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 9.01 (or,
prior to the delivery of the first financial statements under Section 9.01, used
in the preparation of the audited financial statements as at December 31, 1995
referred to in Section 8.02) unless (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements or (ii) the Majority Lenders shall so object in writing
within 30 days after delivery of such financial statements, in either of which
events such calculations shall be made on a basis consistent with those used in
the preparation of the latest financial statements as to which such objection
shall not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 9.01, means the audited financial
statements referred to in Section 8.02).
Credit Agreement
<PAGE>
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(b) The Borrower shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01 (i) a
description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) of this Section 1.02 and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with the
covenants set forth in Section 9, the Borrower will not change the last day of
its fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan or a Facility A Term Loan
or a Facility B Term Loan, each of which constitutes a Class. The "Sub-Series"
of a Facility A or Facility B Term Loan refers to the Loans of such Class made
on a particular day to finance the acquisition of Property or equipment in a
Capital Transaction as contemplated by Section 9.14. The "Type" of a Loan refers
to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
Section 2. Commitments, Loans, Notes and Prepayments .
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender severally agrees,
on the terms and conditions of this Agreement, to make loans to the Borrower in
Dollars during the period from and including the Closing Date to but not
including the Revolving Credit Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Revolving Credit Commitment of such Lender as in effect from time to time
(such Loans being herein called "Revolving Credit Loans"), provided that in no
event shall the aggregate outstanding principal amount of all Revolving Credit
Loans, together with the aggregate outstanding amount of
Credit Agreement
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all Letter of Credit Liabilities, exceed the aggregate amount of the Revolving
Credit Commitments as in effect from time to time. Subject to the terms and
conditions of this Agreement, during such period the Borrower may borrow, repay
and reborrow the amount of the Revolving Credit Commitments by means of Base
Rate Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one
Type into Revolving Credit Loans of another Type (as provided in Section 2.09)
or Continue Revolving Credit Loans of one Type as Revolving Credit Loans of the
same Type (as provided in Section 2.09).
Proceeds of Revolving Credit Loans shall be available for any use permitted
under Section 9.14(a), provided that, in the event that, as contemplated by
Section 2.10(d), the Borrower shall prepay Revolving Credit Loans from the
proceeds of a Disposition hereunder, then an amount of Revolving Credit
Commitments equal to the amount of such prepayment (herein the "Reserved
Commitment Amount") shall be reserved and shall not be available for borrowings
hereunder except and to the extent that the proceeds of such borrowings are to
be applied to a Permitted Reinvestment Transaction or to prepay Term Loans
pursuant to Section 2.10(d). The Borrower agrees, upon the occasion of any
borrowing of Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative
Agent in writing of such fact at the time of such borrowing, identifying the
portion of such borrowing that is to constitute such utilization and the reduced
Reserved Commitment Amount to be in effect after giving effect to such borrowing
(and the Reserved Commitment Amount shall be automatically reduced at the time
of such borrowing by an amount equal to such portion of such borrowing).
(b) Facility A Term Loans. Each Facility A Lender severally agrees, on the
terms and conditions of this Agreement, to make one or more term loans to the
Borrower in Dollars during the period from and including the Closing Date to and
including the Term Loan Commitment Termination Date in an aggregate principal
amount up to but not exceeding the amount of the Facility A Term Loan Commitment
of such Lender (such Loans being herein called the "Facility A Term Loans").
During such period and thereafter, the Borrower may Convert Facility A Term
Loans of one Type into Facility A Term Loans of another Type (as provided in
Section 2.09) or Continue Facility A Term Loans of one Type as Facility A Term
Loans of the same Type (as provided in Section 2.09).
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Proceeds of Facility A Term Loans shall be available to provide financing
for any Capital Transaction (as permitted under Section 9.14(b)) by the
Borrower.
Upon the making of each Facility A Term Loan hereunder, the Borrower shall
designate such Loan as a "Sub-Series" of Facility A Term Loans hereunder (the
first such Sub-Series being the Facility A-1 Term Loans, the second such
Sub-Series being the Facility A-2 Term Loans, and so forth). It is the intent
hereof, that each Sub-Series of Facility A Term Loans be secured only by the
respective equipment acquired with the proceeds of such Sub- Series of Loans
pursuant to the respective Equipment Security Agreement (and, if applicable,
Mortgage) covering such equipment, and that such Sub-Series not be secured by
any of the collateral security for any other Loan hereunder (including any other
Facility A Term Loan), provided that nothing herein shall prohibit the Borrower
from grouping more than one Sub-Series of Facility A Term Loans together as one
Loan in selecting interest rate options hereunder upon the Conversion and
Continuation of Loans. The Administrative Agent shall maintain a register upon
which all borrowings, Conversions, Continuations, payments and prepayments of
each Sub-Series of Facility A Term Loans is recorded and shall make such
register available to the Borrower or any Lender upon request.
(c) Facility B Term Loans. Each Facility B Lender severally agrees, on the
terms and conditions of this Agreement, to make one or more term loans to the
Borrower in Dollars during the period from and including the Closing Date to and
including the Term Loan Commitment Termination Date in an aggregate principal
amount up to but not exceeding the amount of the Facility B Term Loan Commitment
of such Lender (such Loans being herein called the "Facility B Term Loans").
During such period and thereafter, the Borrower may Convert Facility B Term
Loans of one Type into Facility B Term Loans of another Type (as provided in
Section 2.09) or Continue Facility B Term Loans of one Type as Facility B Term
Loans of the same Type (as provided in Section 2.09).
Proceeds of Facility B Term Loans shall be available to provide financing
for any Capital Transaction (as permitted under Section 9.14(c)) by the
Borrower.
Upon the making of each Facility B Term Loan hereunder, the Borrower shall
designate such Loan as a "Sub-Series" of Facility B Term Loans hereunder (the
first such Sub-Series being the Facility B-1 Term Loans, the second such
Sub-Series being the Facility B-2 Term Loans, and so forth). It is the intent
hereof,
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that each Sub-Series of Facility B Term Loans be secured only by the respective
Property or equipment acquired with the proceeds of such Sub-Series of Loans
pursuant to the respective Equipment Security Agreement (and, if applicable,
Mortgage) covering such Property and equipment, and that such Sub-Series not be
secured by any of the collateral security for any other Loan hereunder
(including any other Facility B Term Loan), provided that nothing herein shall
prohibit the Borrower from grouping more than one Sub-Series of Facility B Term
Loans together as one Loan in selecting interest rate options hereunder upon the
Conversion and Continuation of Loans. The Administrative Agent shall maintain a
register upon which all borrowings, Conversions, Continuations, payments and
prepayments of each Sub-Series of Facility B Term Loans is recorded and shall
make such register available to the Borrower or any Lender upon request.
(d) Limit on Eurodollar Loans. No more than ten separate Interest Periods
in respect of Eurodollar Loans of a Class from each Lender may be outstanding at
any one time, provided that prior to March 31, 1997 (or such earlier date as
shall be agreed to by the Arranger), all Eurodollar Loans of any Class must have
an Interest Period of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans of any Class, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such conditions, such
Loan shall be made, or Continued as or Converted into, a Base Rate Loan.
2.02 Borrowings. The Borrower shall give the Administrative Agent notice of
each borrowing hereunder as provided in Section 4.05. Not later than 1:00 p.m.
New York time on the date specified for each borrowing hereunder, each Lender
shall make available the amount of the Loan or Loans to be made by it on such
date to the Administrative Agent, at such account at a bank in New York as shall
be designated by the Administrative Agent from time to time, in immediately
available funds, for account of the Borrower. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by depositing the same, in
immediately available funds, in an account of the Borrower at a bank in New York
designated by the Borrower from time to time.
2.03 Letters of Credit. Subject to the terms and conditions of this
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Borrower in addition to the Revolving Credit Loans provided for by Section
2.01(a), by the issuance by the Issuing Lender of letters of credit
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(collectively, "Letters of Credit") for account of the Borrower or any of its
Subsidiaries (as specified by the Borrower), provided that in no event shall (i)
the aggregate outstanding amount of all Letter of Credit Liabilities, together
with the aggregate outstanding principal amount of the Revolving Credit Loans,
exceed the aggregate amount of the Revolving Credit Commitments as in effect
from time to time, (ii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $5,000,000 and (iii) the expiration date of any Letter of
Credit extend beyond the earlier of the Revolving Credit Commitment Termination
Date and the date fifteen months following the issuance of such Letter of
Credit, except that an automatic renewal provision in a Letter of Credit
extending such Letter of Credit (unless notice by the Issuing Lender is
otherwise given) to a date not later than the date fifteen months following the
date of such extension (but not in any event to a date later than the Revolving
Credit Commitment Termination Date), shall be permitted. The following
additional provisions shall apply to Letters of Credit:
(a) The Borrower shall give the Administrative Agent at least five
Business Days' irrevocable prior notice (effective upon receipt) specifying
the Business Day (which shall be no later than 30 days preceding the
Revolving Credit Commitment Termination Date) each Letter of Credit is to
be issued and the account party or parties therefor and describing in
reasonable detail the proposed terms of such Letter of Credit (including
the beneficiary thereof) and the nature of the transactions or obligations
proposed to be supported thereby (including whether such Letter of Credit
is to be a commercial letter of credit or a standby letter of credit). Upon
receipt of any such notice, the Administrative Agent shall advise the
Issuing Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the then undrawn face amount of such Letter
of Credit. Each Revolving Credit Lender (other than the Issuing Lender)
agrees that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Lender's liability
under such Letter of Credit in an amount equal to such Lender's Revolving
Credit
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Commitment Percentage of such liability, and each Revolving Credit Lender
(other than the Issuing Lender) thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Lender to pay and discharge when
due, its Revolving Credit Commitment Percentage of the Issuing Lender's
liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify the Borrower (through the Administrative Agent) of the
amount to be paid by the Issuing Lender as a result of such demand and the
date on which payment is to be made by the Issuing Lender to such
beneficiary in respect of such demand. Notwithstanding the identity of the
account party of any Letter of Credit, the Borrower hereby unconditionally
agrees to pay and reimburse the Administrative Agent for account of the
Issuing Lender for the amount of each demand for payment under such Letter
of Credit that is in substantial compliance with the provisions of such
Letter of Credit at or prior to the date on which payment is to be made by
the Issuing Lender to the beneficiary thereunder, without presentment,
demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.03, the Borrower shall advise the Administrative
Agent whether or not the Borrower intends to borrow hereunder to finance
its obligation to reimburse the Issuing Lender for the amount of the
related demand for payment and, if it does, submit a notice of such
borrowing as provided in Section 4.05.
(e) Each Revolving Credit Lender (other than the Issuing Lender) shall
pay to the Administrative Agent for account of the Issuing Lender at the
Principal Office in Dollars and in immediately available funds, the amount
of such Lender's Revolving Credit Commitment Percentage of any payment
under a Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Lender under this paragraph (e), and the Issuing Lender's right
to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance
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whatsoever, including, without limitation, the failure of any other
Revolving Credit Lender to make its payment under this paragraph (e), the
financial condition of the Borrower (or any other account party), the
existence of any Default or the termination of the Commitments. Each such
payment to the Issuing Lender shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Revolving Credit Lender shall
default in its obligation to make any such payment to the Administrative
Agent for account of the Issuing Lender, for so long as such default shall
continue the Administrative Agent may at the request of the Issuing Lender
withhold from any payments received by the Administrative Agent under this
Agreement or any Note for account of such Revolving Credit Lender the
amount so in default and, to the extent so withheld, pay the same to the
Issuing Lender in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Lender pursuant to paragraph (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Lender or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by the Borrower
hereunder and under the Letter of Credit Documents relating to such Letter
of Credit and (ii) a participation in a percentage equal to such Lender's
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Borrower hereunder and under such Letter of Credit Documents
in respect of such Reimbursement Obligation (other than the commissions,
charges, costs and expenses payable to the Issuing Lender pursuant to
paragraph (g) of this Section 2.03). Upon receipt by the Issuing Lender
from or for account of the Borrower of any payment in respect of any
Reimbursement Obligation or any such interest or other amount (including by
way of setoff or application of proceeds of any collateral security) the
Issuing Lender shall promptly pay to the Administrative Agent for account
of each Revolving Credit Lender entitled thereto, such Revolving Credit
Lender's Revolving Credit Commitment Percentage of such payment, each such
payment by the Issuing Lender to be made in the same money and funds in
which received by the Issuing Lender. In the event any payment received by
the Issuing Lender and so paid to the Revolving Credit Lenders hereunder is
rescinded or must otherwise be returned by the Issuing Lender, each
Revolving Credit Lender shall, upon the request of the Issuing Lender
(through the Administrative Agent),
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repay to the Issuing Lender (through the Administrative Agent) the amount
of such payment paid to such Lender, with interest at the rate specified in
paragraph (j) of this Section 2.03.
(g) The Borrower shall pay to the Administrative Agent for account of
each Revolving Credit Lender (ratably in accordance with their respective
Commitment Percentages) a letter of credit fee in respect of each Letter of
Credit in an amount per annum equal to the Applicable Rate in respect of
Eurodollar Loans of the daily average undrawn face amount of such Letter of
Credit for the period from and including the date of issuance of such
Letter of Credit (i) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and (ii)
in the case of a Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Letter of
Credit, to but excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in arrears on each
Quarterly Date and on the Revolving Credit Commitment Termination Date and
to be calculated for any day after giving effect to any payments made under
such Letter of Credit on such day).
In addition, the Borrower shall pay to the Administrative Agent for
account of the Issuing Lender a fronting fee in respect of each Letter of
Credit in an amount equal to 1/4 of 1% per annum of the daily average
undrawn face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in the case of
a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of Credit on
such day) plus all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
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(h) Promptly following the end of each calendar month, the Issuing
Lender shall deliver (through the Administrative Agent) to each Revolving
Credit Lender and the Borrower a notice describing the aggregate amount of
all Letters of Credit outstanding at the end of such month. Upon the
request of any Revolving Credit Lender from time to time, the Issuing
Lender shall deliver any other information reasonably requested by such
Lender with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 7, be subject
to the conditions precedent that (i) such Letter of Credit shall be in such
form, contain such terms and support such transactions as shall be
satisfactory to the Issuing Lender consistent with its then current
practices and procedures with respect to letters of credit of the same type
(except that in no event shall any Letter of Credit provide support for
obligations that would constitute "Indebtedness" under and as defined in
the 1995 Senior Notes Indenture) and (ii) the Borrower shall have executed
and delivered such applications, agreements and other instruments relating
to such Letter of Credit as the Issuing Lender shall have reasonably
requested consistent with its then current practices and procedures with
respect to letters of credit of the same type, provided that in the event
of any conflict between any such application, agreement or other instrument
and the provisions of this Agreement or any Security Document, the
provisions of this Agreement and the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section 2.03
on the due date therefor, such Lender shall pay interest to the Issuing
Lender (through the Administrative Agent) on such amount from and including
such due date to but excluding the date such payment is made at a rate per
annum equal to the Federal Funds Rate, provided that if such Lender shall
fail to make such payment to the Issuing Lender within three Business Days
of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit,
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and no such modification or supplement shall be issued hereunder unless
either (i) the respective Letter of Credit affected thereby would have
complied with such conditions had it originally been issued hereunder in
such modified or supplemented form or (ii) each Revolving Credit Lender
shall have consented thereto.
The Borrower hereby indemnifies and holds harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Lender under any Letter of Credit; provided that the Borrower shall
not be required to indemnify any Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Lender in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Lender, such Lender's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended to
limit the other obligations of the Borrower, any Lender or the Administrative
Agent under this Agreement.
2.04 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments shall be
automatically reduced to zero on the Revolving Credit Commitment Termination
Date. In addition, the aggregate amount of the Revolving Credit Commitments
shall (subject to adjustment as provided in paragraph (c) of this Section 2.04)
be automatically reduced to $15,000,000 on the Revolving Credit Commitment
Reduction Date falling on or nearest to October 31, 2001.
(b) The Borrower shall have the right at any time or from time to time (i)
to terminate or reduce the aggregate unutilized amount of the Facility A or
Facility B Term Loan Commitments, (ii) so long as no Revolving Credit Loans or
Letter of Credit Liabilities are outstanding, to terminate the Revolving Credit
Commitments and (iii) to reduce the aggregate unutilized amount of the Revolving
Credit Commitments (for which purpose use of the Revolving Credit Commitments
shall be deemed to include
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the aggregate amount of Letter of Credit Liabilities); provided that (x) the
Borrower shall give notice of each such termination or reduction as provided in
Section 4.05 and (y) each partial reduction of the Commitments of any Class
shall be in an aggregate amount at least equal to $5,000,000 (or a larger
multiple of $1,000,000).
(c) Each reduction in the aggregate amount of the Revolving Credit
Commitments pursuant to Section 2.10 on any date shall result in an automatic
and simultaneous reduction (but not below zero) in the aggregate amount of the
Revolving Credit Commitments to be outstanding on the Revolving Credit
Commitment Reduction Date falling on or nearest to October 31, 2001 as provided
in paragraph (a) of this Section 2.04.
(d) The aggregate amount of the Facility A and Facility B Term Loan
Commitments shall be automatically reduced to zero on the Term Loan Commitment
Termination Date.
(e) The Commitments once terminated or reduced may not be reinstated.
2.05 Commitment Fee. The Borrower shall pay to the Administrative Agent for
account of each Lender a commitment fee on the daily average unutilized amount
of the respective Commitments of such Lender (for which purpose the aggregate
amount of any Letter of Credit Liabilities shall be deemed to be a pro rata,
based on the Revolving Credit Commitments, use of each Lender's Revolving Credit
Commitment), for the period from and including the date hereof to but not
including the date such Commitment is terminated, at a rate per annum equal to
the Applicable Rate. Accrued commitment fee shall be payable on each Quarterly
Date and on the date the relevant Commitments are terminated.
2.06 Lending Offices. The Loans of each Type made by each Lender shall be
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
2.07 Several Obligations; Remedies Independent. The failure of any Lender
to make any Loan to be made by it on the date specified therefor shall not
relieve any other Lender of its obligation to make its Loan on such date, but
neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan
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required to be made by such Lender. The amounts payable by the Borrower at any
time hereunder and under the Notes to each Lender shall be a separate and
independent debt and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Lender or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings for such purposes.
2.08 Notes.
(a) The Revolving Credit Loans made by each Lender shall be evidenced by a
single promissory note of the Borrower substantially in the form of Exhibit A-1,
dated the date hereof, payable to such Lender in a principal amount equal to the
amount of its Revolving Credit Commitment as originally in effect and otherwise
duly completed.
(b) The Facility A Term Loans made by each Lender shall be evidenced by a
single promissory note of the Borrower substantially in the form of Exhibit A-2,
dated the date hereof, payable to such Lender in a principal amount equal to its
Facility A Term Loan Commitment as originally in effect and otherwise duly
completed.
(c) The Facility B Term Loans made by each Lender shall be evidenced by a
single promissory note of the Borrower substantially in the form of Exhibit A-3,
dated the date hereof, payable to such Lender in a principal amount equal to its
Facility B Term Loan Commitment as originally in effect and otherwise duly
completed.
(d) The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Loan of each Class made by each Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by
such Lender on its books and, prior to any transfer of the Note evidencing the
Loans of such Class held by it, endorsed by such Lender on the schedule attached
to such Note or any continuation thereof; provided that the failure of such
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any amount owing
hereunder or under such Note in respect of such Loans.
(e) No Lender shall be entitled to have its Notes substituted or exchanged
for any reason, or subdivided for promissory notes of lesser denominations,
except in connection with a permitted assignment of all or any portion of such
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Lender's relevant Commitment, Loans and Notes pursuant to Section 12.06 (and, if
requested by any Lender, the Borrower agrees to so exchange any Note).
2.09 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04, the Borrower shall have the right to prepay Loans, or
to Convert Loans of one Type into Loans of another Type or Continue Loans of one
Type as Loans of the same Type, at any time or from time to time, provided that:
(a) the Borrower shall give the Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in Section 4.05
(and, upon the date specified in any such notice of prepayment, the amount
to be prepaid shall become due and payable hereunder);
(b) upon any prepayment of Eurodollar Loans other than on the last day
of an Interest Period for such Loans, the Borrower shall pay any amounts
owing under Section 5.05 as a result of such prepayment;
(c) prepayments of the Term Loans shall be applied to the Facility A
and Facility B Term Loans ratably in accordance with the respective
then-outstanding aggregate amounts of such Loans (and, as to the Loans of
each such Class, ratably to each Sub-Series of the Loans of such Class in
accordance with the respective then-outstanding aggregate amounts of such
Sub-Series) and, each such prepayment of Facility A and Facility B Term
Loans shall be applied to the installments thereof in the inverse order of
maturity; and
(d) any Conversion into or Continuation of Eurodollar Loans shall be
subject to the provisions of Section 2.01(d).
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10, in the event that any Event of Default shall have
occurred and be continuing, the Administrative Agent may (and at the request of
the Majority Lenders shall) suspend the right of the Borrower to Convert any
Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan, in
which event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) into, or Continued as, as the case may be, Base Rate
Loans.
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2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Excess Cash Flow. Not later than the date 90 days after the end of each
fiscal year of the Borrower commencing with Excess Cash Flow for the fiscal year
ending on December 31, 1997, the Borrower shall prepay the Loans (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (g) below), and
the Commitments shall be subject to automatic reduction, in an aggregate amount
equal to the excess of (A) 50% of Excess Cash Flow for such fiscal year over (B)
the aggregate amount of prepayments of Facility A and Facility B Term Loans made
during such fiscal year pursuant to Section 2.09, provided that no such
prepayment shall be required to the extent that the Leverage Ratio as at the
last day of such fiscal year shall be less than 3.50 to 1. Such prepayment and
reduction shall be effected as follows:
first, to the prepayment of the Facility A and Facility B Term Loans,
ratably in accordance with the respective then-outstanding aggregate
principal amounts thereof (and, to the extent such prepayment shall exceed
the then outstanding aggregate principal amount of the Term Loans and shall
occur prior to the Term Loan Commitment Termination Date, the Facility A
and Facility B Term Loan Commitments shall be concurrently reduced in an
amount equal to the respective amounts of such required prepayments in
respect of such Loans);
second, to the reduction of the Revolving Credit Commitments (and to
the extent that, after giving effect to such reduction, the aggregate
principal or face amount of Revolving Credit Loans and Letter of Credit
Liabilities would exceed the Revolving Credit Commitments, the Borrower
shall, first, prepay Revolving Credit Loans and, second, provide cover for
Letter of Credit Liabilities, in an aggregate amount equal to such excess
(such cover for Letter of Credit Liabilities to be effected in the manner
provided in paragraph (g) below).
Each such prepayment of the Term Loans of any Class shall be applied ratably to
each Sub-Series of the Loans of such Class in accordance with the respective
then-outstanding aggregate amounts of such Sub-Series, and to the installments
thereof in the inverse order of maturity.
(b) Debt Issuance. Upon any Debt Issuance, the Borrower shall prepay the
Facility A and Facility B Term Loans
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(and the Facility A and Facility B Term Loan Commitments shall be subject to
automatic reduction) in an aggregate amount equal to 100% of the Net Available
Proceeds of such Debt Issuance, such prepayment to be applied ratably to the
Term Loans in accordance with the respective then-outstanding aggregate
principal amounts thereof (and, to the extent such prepayment shall exceed the
then outstanding aggregate principal amount of the Term Loans and shall occur
prior to the Term Loan Commitment Termination Date, the Facility A and Facility
B Term Loan Commitments shall be concurrently reduced in an amount equal to the
respective amounts of such required prepayments in respect of such Loans). Each
such prepayment of the Term Loans of any Class shall be applied ratably to each
Sub-Series of the Loans of such Class in accordance with the respective
then-outstanding aggregate amounts of such Sub-Series, and to the installments
thereof in the inverse order of maturity.
(c) Casualty Events. Upon the date 180 days following the receipt by any
Obligor of the proceeds of insurance, condemnation award or other compensation
in respect of any Casualty Event affecting any Property of the Borrower or any
of its Subsidiaries (or upon such earlier date as the Borrower or such
Subsidiary, as the case may be, shall have determined not to repair or replace
the Property affected by such Casualty Event), the Borrower shall prepay the
Facility A and Facility B Term Loans, and the Facility A and Facility B
Commitments shall be subject to automatic reduction, in an aggregate amount, if
any, equal to 100% of the Net Available Proceeds of such Casualty Event not
theretofore applied to the repair or replacement of such Property (or to
reimburse the Borrower or respective Subsidiary for repairing or replacing such
Property), such prepayment and reduction to be effected as follows:
first, to the prepayment of the Sub-Series of Term Loans (if any)
secured by the respective Property that was the subject of such Casualty
Event, to the installments of such Sub-Series in the inverse order of
maturity; and
second, after the prepayment in full of such Sub-Series (or, in the
event such Property was not collateral security for any of the Term Loans),
to the prepayment of the Facility A and Facility B Term Loans ratably in
accordance with the respective then-outstanding aggregate principal amounts
thereof (and, to the extent such prepayment shall exceed the then
outstanding aggregate principal amount of the Term Loans and shall occur
prior to the Term Loan Commitment Termination Date, the Facility A and
Facility B Term Loan Commitments shall be concurrently reduced in an
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amount equal to the respective amounts of such required prepayments in
respect of such Loans), each such prepayment of the Term Loans of any Class
being applied ratably to each Sub-Series of the Loans of such Class in
accordance with the respective then-outstanding aggregate amounts of such
Sub- Series, and to the installments thereof in the inverse order of
maturity.
Notwithstanding the foregoing, the Borrower shall not be required to make any
prepayment under this Section 2.10(c) unless the Net Available Proceeds of a
Casualty Event shall be greater than or equal to $100,000.
Nothing in this paragraph (c) shall be deemed to limit any obligation of
the Borrower or any of its Subsidiaries pursuant to any of the Security
Documents to remit to a collateral or similar account maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds of
insurance, condemnation award or other compensation received in respect of any
Casualty Event or to obligate the Administrative Agent to release any of such
proceeds from such account to the Borrower for purposes of reinvestment as
aforesaid upon the occurrence and during the continuance of an Event of Default.
(d) Sale of Assets. Without limiting the obligation of the Borrower to
obtain the consent of the Majority Lenders to any Disposition not otherwise
permitted hereunder, the Borrower agrees, on or prior to the occurrence of any
Disposition (herein, the "Current Disposition"), to deliver to the
Administrative Agent a statement certified by a senior financial officer of the
Borrower, in form and detail reasonably satisfactory to the Administrative
Agent, of the estimated amount of the Net Available Proceeds of the Current
Disposition that will (on the date of the Current Disposition) be received in
cash and, to the extent that the Net Available Proceeds of the Current
Disposition, and of all prior Dispositions as to which a prepayment has not yet
been made under this Section 2.10(d), shall exceed $100,000 (or shall exceed
$1,000,000, in the event the Property that is the subject of such Disposition
does not constitute collateral security for any Facility A or Facility B Term
Loan), the Borrower will prepay the Facility A and Facility B Loans hereunder,
and the Facility A and Facility B Term Loan Commitments hereunder shall be
subject to automatic reduction, as follows:
(i) within two days of the Current Disposition, in an aggregate amount
equal to 100% of such estimated amount of the Net Available Proceeds of the
Current Disposition, to
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the extent received in cash on the date of the Current Disposition,
together with 100% of the Net Available Proceeds of all such prior
Dispositions, provided that if the amount of such required prepayment (and
reduction of Commitment) shall exceed $1,000,000, then such prepayment
shall be made on the date of the Current Disposition; and
(ii) thereafter, quarterly, on the date of the delivery by the
Borrower to the Administrative Agent pursuant to Section 9.01(a) of the
financial statements for each quarterly fiscal period or (if earlier) the
date 60 days after the end of such quarterly fiscal period, to the extent
the Borrower or any of its Subsidiaries shall receive Net Available
Proceeds during such quarterly fiscal period in cash under deferred payment
arrangements or Disposition Investments entered into or received in
connection with any Disposition, an amount equal to (A) 100% of the
aggregate amount of such Net Available Proceeds minus (B) any transaction
expenses associated with Dispositions and not previously deducted in the
determination of Net Available Proceeds plus (or minus, as the case may be)
(C) any other adjustment received or paid by the Obligors pursuant to the
respective agreements giving rise to Dispositions and not previously taken
into account in the determination of the Net Available Proceeds of
Dispositions, provided that if prior to the date upon which the Borrower
would otherwise be required to make a prepayment under this clause (ii)
with respect to any quarterly fiscal period the aggregate amount of such
Net Available Proceeds (after giving effect to the adjustments provided for
in this clause (ii)) shall exceed $100,000, then the Borrower shall within
five Business Days make a prepayment under this clause (ii) in an amount
equal to such required prepayment.
Each such prepayment of Term Loans and reductions of Facility A and
Facility B Term Loan Commitments shall be effected as follows:
first, to the prepayment of the Sub-Series of Term Loans (if any)
secured by the respective Property (or Properties) that was (or were) the
subject of such Disposition(s), to the installments of such Sub-Series in
the inverse order of maturity (and if more than one such Sub-Series is so
affected, applied ratably to each such Sub- Series); and
second, after the prepayment in full of such Sub-Series (or, in the
event such Property was not collateral security
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for any of the Term Loans), to the prepayment of the Facility A and
Facility B Term Loans ratably in accordance with the respective
then-outstanding aggregate principal amounts thereof (and, to the extent
such prepayment shall exceed the then outstanding aggregate principal
amount of the Term Loans and shall occur prior to the Term Loan Commitment
Termination Date, the Facility A and Facility B Term Loan Commitments shall
be concurrently reduced in an amount equal to the respective amounts of
such required prepayments in respect of such Loans), each such prepayment
of the Term Loans of any Class being applied ratably to each Sub-Series of
the Loans of such Class in accordance with the respective then-outstanding
aggregate amounts of such Sub- Series, and to the installments thereof in
the inverse order of maturity.
Notwithstanding the foregoing, the Borrower shall not be required to make a
prepayment pursuant to clause second above (but shall be required to make the
prepayment pursuant to clause first above) with respect to the Net Available
Proceeds from any Disposition in the event that the Borrower advises the
Administrative Agent at the time such prepayment is required to be made that it
intends to reinvest such Net Available Proceeds pursuant to a Permitted
Reinvestment Transaction, so long as:
(x) such Net Available Proceeds are either (A) delivered to the
Administrative Agent to be held in the Collateral Account pending such
reinvestment, in which event the Administrative Agent need not release such
Net Available Proceeds except upon presentation of evidence reasonably
satisfactory to it that such Net Available Proceeds are to be so reinvested
in compliance with the provisions of this Agreement or (B) applied by the
Borrower to the prepayment of Revolving Credit Loans hereunder (in which
event the Borrower agrees to advise the Administrative Agent in writing at
the time of such prepayment of Revolving Credit Loans that such prepayment
is being made from the proceeds of a Disposition and that, as contemplated
by the second paragraph of Section 2.01(a), a portion of the Revolving
Credit Commitments equal to the amount of such prepayment gives rise to a
Reserved Commitment Amount that shall be available hereunder only for
purposes of making a Permitted Reinvestment Transaction, and
(y) the Net Available Proceeds from any Disposition are in fact so
reinvested within twelve months of such Disposition (it being understood
that, in the event Net Available Proceeds from more than one Disposition
are
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delivered to the Administrative Agent or applied to the prepayment of
Revolving Credit Loans as provided in clause (x) above, such Net Available
Proceeds shall be deemed to be released (or, as the case may be, Revolving
Credit Loans utilizing the Reserved Commitment Amount shall be deemed to be
made) in the same order in which such Dispositions occurred and,
accordingly, (A) any such Net Cash Payments so held for more than twelve
months shall be forthwith applied to the prepayment of Loans and reductions
of Commitments as provided above and (B) any Reserved Commitment Amount
that remains so unutilized for more than twelve months shall, subject to
the satisfaction of the conditions precedent to such borrowing in Section
5.02, be utilized through the borrowing by the Borrower of Revolving Credit
Loans the proceeds of which shall be applied to the prepayment of Facility
A and Facility B Term Loans and reductions of Facility A and Facility B
Term Loan Commitments as provided in clause second above.
Nothing in this Section 2.10(d) shall be deemed to obligate the Administrative
Agent to release any of such proceeds from the Collateral Account to the
Obligors for purposes of reinvestment as aforesaid upon the occurrence and
during the continuance of any Event of Default.
(e) Revolving Loan Clean-Up. The Borrower will from time to time prepay the
Revolving Credit Loans in such amounts as shall be necessary so that for a
period of at least 30 consecutive days during the period commencing on June 1
and ending on November 1 in each fiscal year, there shall be no Revolving Credit
Loans outstanding hereunder.
(f) Change of Control. In the event that the Borrower shall be required
pursuant to the provisions of any instrument evidencing or governing any
Subordinated Indebtedness to redeem, or make an offer to redeem or repurchase,
all or any portion of such Subordinated Indebtedness as a result of a change of
control (however defined), then, concurrently with the occurrence of the event
giving rise to such change of control, the Borrower shall prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in paragraph
(g) below) in full, and the Commitments shall automatically terminate.
(g) Cover for Letter of Credit Liabilities. In the event that the Borrower
shall be required pursuant to this Section 2.10, or pursuant to Section 3.01(a),
to provide cover for Letter of Credit Liabilities, the Borrower shall effect the
same by paying to the Administrative Agent immediately available
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funds in an amount equal to the required amount, which funds shall be retained
by the Administrative Agent in the Collateral Account (as provided therein as
collateral security in the first instance for the Letter of Credit Liabilities)
until such time as the Letters of Credit shall have been terminated and all of
the Letter of Credit Liabilities paid in full.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Borrower hereby promises to pay to the Administrative Agent for
account of each Lender the entire outstanding principal amount of such Lender's
Revolving Credit Loans, and each Revolving Credit Loan shall mature, on the
Revolving Credit Commitment Termination Date. In addition, if following any
Commitment Reduction Date the aggregate principal amount of the Revolving Credit
Loans, together with the aggregate amount of all Letter of Credit Liabilities,
shall exceed the Revolving Credit Commitments, the Borrower shall, first, pay
Revolving Credit Loans and, second, provide cover for Letter of Credit
Liabilities, in an aggregate amount equal to such excess (such cover for Letter
of Credit Liabilities to be effected in the manner specified in Section
2.10(g)).
(b) Facility A Term Loans. The Borrower hereby promises to pay to the
Administrative Agent for account of the Facility A Lenders the principal of the
Facility A Term Loans in fourteen installments payable on the Principal Payment
Dates as follows (each such payment to be applied ratably to each Sub- Series of
such Loans):
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Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------- -------------------------
July 31, 1998 1,250,000
October 31, 1998 1,250,000
January 31, 1999 1,125,000
April 30, 1999 1,125,000
July 31, 1999 1,125,000
October 31, 1999 1,125,000
January 31, 2000 1,875,000
April 30, 2000 1,875,000
July 31, 2000 1,875,000
October 31, 2000 1,875,000
January 31, 2001 2,500,000
April 30, 2001 2,500,000
July 31, 2001 2,500,000
October 31, 2001 2,500,000
If on the close of business on the Term Loan Commitment Termination Date the
aggregate outstanding principal amount of the Facility A Term Loans shall be
less than the aggregate original principal amount of the Facility A Term Loan
Commitments, the shortfall shall be applied to reduce the foregoing installments
ratably.
(c) Facility B Term Loans. The Borrower hereby promises to pay to the
Administrative Agent for account of the Facility B Lenders the principal of the
Facility B Term Loans in fourteen installments payable on the Principal Payment
Dates as follows (each such payment to be applied ratably to each Sub- Series of
such Loans):
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Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------- -------------------------
July 31, 1998 2,500,000
October 31, 1998 2,500,000
January 31, 1999 3,750,000
April 30, 1999 3,750,000
July 31, 1999 3,750,000
October 31, 1999 3,750,000
January 31, 2000 4,375,000
April 30, 2000 4,375,000
July 31, 2000 4,375,000
October 31, 2000 4,375,000
January 31, 2001 5,625,000
April 30, 2001 5,625,000
July 31, 2001 5,625,000
October 31, 2001 5,625,000
If on the close of business on the Term Loan Commitment Termination Date the
aggregate outstanding principal amount of the Facility B Term Loans shall be
less than the aggregate original principal amount of the Facility B Term Loan
Commitments, the shortfall shall be applied to reduce the foregoing installments
ratably.
3.02 Interest. The Borrower hereby promises to pay to the Administrative
Agent for account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender to the Borrower for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin; and
(b) during each Interest Period for such Loan during which such Loan
is a Eurodollar Loan, the Eurodollar Rate for such Interest Period plus the
Applicable Margin.
Notwithstanding the foregoing, the Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and on any other amount payable by
the
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Borrower hereunder or under the Notes held by such Lender to or for account of
such Lender, that shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full.
Accrued interest on each Loan shall be payable (i) in the case of a Base
Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar
Loan, on the last day of each Interest Period therefor and, if such Interest
Period is longer than three months, at three-month intervals following the first
day of such Interest Period, and (iii) in the case of any Loan, upon the payment
or prepayment thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted), except that
interest payable at the Post-Default Rate shall be payable from time to time on
demand. Promptly after the determination of any interest rate provided for
herein or any change therein, the Administrative Agent shall give notice thereof
to the Lenders to which such interest is payable and to the Borrower .
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrower under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Loan Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent, at such
account at a bank in New York as shall be designated by the Administrative Agent
from time to time, in immediately available funds, not later than 12:00 p.m. New
York time on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may (but
shall not be obligated to) debit the amount of any such payment that is not made
by such time to any ordinary deposit account of the Borrower with such Lender
(with notice to the Borrower and the Administrative Agent), provided that such
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Lender's failure to give such notice shall not affect the validity thereof.
(c) The Borrower shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable by the Borrower hereunder to
which such payment is to be applied (and in the event that the Borrower fails to
so specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of Section
2.03(e), each payment received by the Administrative Agent under this Agreement
or any Note for account of any Lender shall be paid by the Administrative Agent
promptly to such Lender, in immediately available funds, for account of such
Lender's Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing of Loans of a particular Class from the Lenders under Section
2.01 shall be made from the relevant Lenders, each payment of commitment fee
under Section 2.05 in respect of Commitments of a particular Class shall be made
for account of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.04 shall be
applied to the respective Commitments of such Class of the relevant Lenders, pro
rata according to the amounts of their respective Commitments of such Class; (b)
except as otherwise provided in Section 5.04, Eurodollar Loans of any Class
having the same Interest Period shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Revolving Credit
Commitments, Facility A Term Loan Commitments and Facility B Term Loan
Commitments (in the case of the making of Loans) or their respective Revolving
Credit Loans, Facility A Term Loans and Facility B Term Loans (in the case of
Conversions and Continuations of Loans); (c) each payment or prepayment of
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principal of Revolving Credit Loans, Facility A Term Loans or Facility B Term
Loans by the Borrower shall be made for account of the relevant Lenders pro rata
in accordance with the respective unpaid principal amounts of the Loans of such
Class held by them; and (d) each payment of interest on Revolving Credit Loans,
Facility A Term Loans and Facility B Term Loans by the Borrower shall be made
for account of the relevant Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans and commitment fee and
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but, except as otherwise provided
in Section 2.03(g), excluding the last day) occurring in the period for which
payable and interest on Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant to
Section 2.10 and Conversions or prepayments made pursuant to Section 5.04, each
borrowing, Conversion and partial prepayment of principal of Base Rate Loans
shall be in an aggregate amount at least equal to $500,000 and each borrowing,
Conversion and partial prepayment of principal of Eurodollar Loans shall be in
an aggregate amount at least equal to $5,000,000 (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be deemed
separate borrowings, Conversions and prepayments for purposes of the foregoing,
one for each Type or Interest Period), provided that if any Eurodollar Loans
would otherwise be in a lesser principal amount for any period, such Loans shall
be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Borrower to the Administrative Agent
of terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans, of Classes of Loans, of Types
of Loans and of the duration of Interest Periods shall be irrevocable and shall
be effective only if received by the Administrative Agent not later than 11:00
a.m. New York time on
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the number of Business Days prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first day of
such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class (and, if applicable, the Sub-Series) of Loans to be borrowed, Converted,
Continued or prepaid and the amount (subject to Section 4.04) and Type of each
Loan to be borrowed, Converted, Continued or prepaid and the date of borrowing,
Conversion, Continuation or optional prepayment (which shall be a Business Day).
Each such notice of the duration of an Interest Period shall specify the Loans
to which such Interest Period is to relate. The Administrative Agent shall
promptly notify the Lenders of the contents of each such notice. In the event
that the Borrower fails to select the Type of Loan, or the duration of any
Interest Period for any Eurodollar Loan, within the time period and otherwise as
provided in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan)
will be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for such Loan or (if outstanding as a Base Rate
Loan) will remain as, or (if not then outstanding) will be made as, a Base Rate
Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Borrower (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such
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Lender hereunder or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day (it
being understood that, in the event the Borrower is the recipient of such
payment, such interest shall be in lieu of any interest otherwise payable under
Section 3.02) and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest as aforesaid, provided that if
neither the recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made by
the Borrower to the Lenders, the Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of the Borrower under Section 3.02 to pay interest on the
Required Payment at the Post-Default Rate), it being understood that the
return by the recipient(s) of the Required Payment to the Administrative
Agent shall not limit such obligation of the Borrower under Section 3.02 to
pay interest at the Post-Default Rate in respect of the Required Payment,
and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to the Borrower, the Payor and the Borrower shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment pursuant to whichever of the rates specified in
Section 3.02 is applicable to the Type of such
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Loan, it being understood that the return by the Borrower of the Required
Payment to the Administrative Agent shall not limit any claim the Borrower
may have against the Payor in respect of such Required Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option (to the fullest extent permitted by
law), to set off and apply any deposit (general or special, time or demand,
provisional or final), or other indebtedness, held by it for the credit or
account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness is then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, provided that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any principal of
or interest on any Loan of any Class or Letter of Credit Liability owing to it
or payment of any other amount under this Agreement or any other Loan Document
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise (other than from the Administrative Agent as provided
herein), and, as a result of such payment, such Lender shall have received a
greater percentage of the principal of or interest on the Loans of any Class or
Letter of Credit Liabilities or any other amounts then due hereunder or
thereunder by such Obligor to such Lender than the percentage received by any
other Lender, it shall promptly purchase from such other Lenders participations
in (or, if and to the extent specified by such Lender, direct interests in) the
Loans or Letter of Credit Liabilities or such other amounts, respectively, owing
to such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or Letter of Credit Liabilities
or such other amounts, respectively, owing to each of the Lenders. To such end
all the Lenders shall make appropriate adjustments among themselves (by
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the resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a participation
(or direct interest) may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans or other amounts (as the case may be)
owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such
right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Borrower shall pay directly to each Lender from time to time such
amounts as such Lender may determine to be necessary to compensate such Lender
for any costs that such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for any
of such Loans) to any tax, duty or other charge in respect of such Loans or
its Notes or changes the basis of taxation of any amounts payable to such
Lender under this Agreement or its Notes in respect of any of such Loans
(excluding changes in the rate of tax on the overall net income of such
Lender or of such Applicable Lending Office by the jurisdiction in which
such Lender has its principal office or such Applicable Lending Office); or
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(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement used in the determination
of the Eurodollar Rate for any Interest Period for such Loan) relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Borrower under this paragraph, the
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Loans of any other Type into Eurodollar Loans,
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 shall be applicable), provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section
5.01 (but without duplication), the Borrower shall pay directly to each Lender
from time to time on request such amounts as such Lender may determine to be
necessary to compensate such Lender (or, without duplication, the bank holding
company of which such Lender is a subsidiary) for any costs that it determines
are attributable to the maintenance by such Lender (or any Applicable Lending
Office or such bank holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) of any court or
governmental or monetary authority (i) following any Regulatory Change or (ii)
implementing any risk-based capital guideline or other requirement (whether or
not having the force of law and whether or not the failure to comply therewith
would be unlawful) hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below
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that which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request).
(c) Each Lender shall notify the Borrower of any event occurring after the
date hereof entitling such Lender to compensation under paragraph (a) or (b) of
this Section 5.01 as promptly as practicable, but in any event within 45 days,
after such Lender obtains actual knowledge thereof; provided that (i) if any
Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America.
Each Lender will furnish to the Borrower a certificate setting forth the
basis and amount of each request by such Lender for compensation under paragraph
(a) or (b) of this Section 5.01. Determinations and allocations by any Lender
for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the Eurodollar Base
Rate for any Interest Period for any Eurodollar Loan;
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01 are
not being provided in the relevant amounts or for the relevant
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maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders or, if the related Loans are Facility A Term Loans
or Facility B Term Loans, the Majority Facility A Lenders or Majority
Facility B Lenders, respectively, determine, which determination shall be
conclusive, and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base Rate" in Section
1.01 upon the basis of which the rate of interest for Eurodollar Loans for
such Interest Period is to be determined are not likely to cover adequately
the cost to such Lenders of making or maintaining Eurodollar Loans for such
Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.09.
5.03 Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans hereunder
(and, in the sole opinion of such Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender), then such Lender shall promptly notify the
Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to make
Eurodollar Loans or to Continue, or to Convert Base Rate Loans into, Eurodollar
Loans shall be suspended pursuant to Section 5.01 or 5.03, such Lender's
Eurodollar Loans shall be automatically Converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for Eurodollar Loans (or, in
the case of a Conversion resulting from a circumstance described in Section
5.03, on such earlier date as
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such Lender may specify to the Borrower with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as Eurodollar Loans shall be made or Continued instead as Base Rate Loans,
and all Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to
the Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are outstanding, such Lender's Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Base Rate Loans and Eurodollar Loans of
such Class are allocated among the Lenders ratably (as to principal amounts,
Types and Interest Periods) in accordance with their respective Commitments of
such Class.
5.05 Compensation. The Borrower shall pay to the Administrative Agent for
account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10) on a date
other than the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 to be satisfied) to borrow a Eurodollar Loan from such Lender on
the date for such borrowing specified in the relevant notice of borrowing
given pursuant to Section 2.02.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Telerate Access Service
Page 3750 (British Bankers Association Settlement Rate) or other publicly
available source as described in the definition of "Eurodollar Base Rate" in
Section 1.01).
5.06 Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under Section 5.01 (but without duplication), if as
a result of any Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord there
shall be imposed, modified or deemed applicable any tax, reserve, special
deposit, capital adequacy or similar requirement against or with respect to or
measured by reference to Letters of Credit issued or to be issued hereunder and
the result shall be to increase the cost to any Lender or Lenders of issuing (or
purchasing participations in) or maintaining its obligation hereunder to issue
(or purchase participations in) any Letter of Credit hereunder or reduce any
amount receivable by any Lender hereunder in respect of any Letter of Credit
(which increases in cost, or reductions in amount receivable, shall be the
result of such Lender's or Lenders' reasonable allocation of the aggregate of
such increases
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or reductions resulting from such event), then, upon demand by such Lender or
Lenders (through the Administrative Agent), the Borrower shall pay immediately
to the Administrative Agent for account of such Lender or Lenders, from time to
time as specified by such Lender or Lenders (through the Administrative Agent),
such additional amounts as shall be sufficient to compensate such Lender or
Lenders (through the Administrative Agent) for such increased costs or
reductions in amount. A statement as to such increased costs or reductions in
amount incurred by any such Lender or Lenders, submitted by such Lender or
Lenders to the Borrower shall be conclusive in the absence of manifest error as
to the amount thereof.
5.07 U.S. Taxes.
(a) The Borrower agrees to pay to each Lender that is not a U.S. Person
such additional amounts as are necessary in order that the net payment of any
amount due to such non-U.S. Person hereunder after deduction for or withholding
in respect of any U.S. Taxes imposed with respect to such payment (or in lieu
thereof, payment of such U.S. Taxes by such non-U.S. Person), will not be less
than the amount stated herein to be then due and payable, provided that the
foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender is, on
the date hereof (or on the date it becomes a Lender hereunder as provided
in Section 12.06(b)) and on the date of any change in the Applicable
Lending Office of such Lender, either entitled to submit a Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect of
the Loans) or Form 4224 (relating to all interest to be received by such
Lender hereunder in respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this paragraph, (A) "U.S. Person" means a citizen, national
or resident of the United States of America, a
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corporation, partnership or other entity created or organized in or under any
laws of the United States of America or any State thereof, or any estate or
trust that is subject to Federal income taxation regardless of the source of its
income, (B) "U.S. Taxes" means any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein, (C) "Form 1001" means Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the
United States of America and (D) "Form 4224" means Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States) of the Department of the Treasury of the
United States of America. Each of the Forms referred to in the foregoing clauses
(C) and (D) shall include such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United States of
America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative Agent or
any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Borrower
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
5.08 Replacement of Lenders. If any of the following shall occur with
respect to any Lender (any such Lender being herein called an "Affected
Lender"):
(a) any Lender shall request compensation pursuant to Section 5.01,
5.06 or 5.07,
(b) any Lender's obligation to make or Continue Loans of any Type, or
to Convert Loans of any Type into the other Type of Loan, shall be
suspended pursuant to Section 5.01 or 5.03 or
(c) any Lender shall default in the making of any Loan required to be
made by it pursuant to Section 2.01,
the Borrower, upon three Business Days notice, may require that such Affected
Lender transfer all of its right, title and interest under this Agreement and
such Affected Lender's Notes to any bank or other financial institution (a
"Proposed Lender") identified by the Borrower that is satisfactory to the
Administrative Agent and the Issuing Lender (i) if such Proposed
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Lender agrees to assume all of the obligations of such Affected Lender
hereunder, and to purchase all of such Affected Lender's Loans hereunder for
consideration equal to the aggregate outstanding principal amount of such
Affected Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Affected
Lender of all other amounts payable hereunder to such Affected Lender on or
prior to the date of such transfer (including any fees accrued hereunder and any
amounts that would be payable under Section 5.05 as if all of such Affected
Lender's Loans were being prepaid in full on such date) and (ii) if such
Affected Lender has requested compensation pursuant to Section 5.01, 5.06 or
5.07, such Proposed Lender's aggregate requested compensation, if any, pursuant
to Section 5.01, 5.06 or 5.07 with respect to such Affected Lender's Loans is
lower than that of the Affected Lender.
Subject to the provisions of Section 12.06(b), such Proposed Lender shall
be a "Lender" for all purposes hereunder. Without prejudice to the survival of
any other agreement of the Borrower hereunder the agreements of the Borrower
contained in Sections 5.01, 5.06, 5.07 and 12.04 (without duplication of any
payments made to such Affected Lender by the Borrower or the Proposed Lender)
shall survive for the benefit of such Affected Lender under this Section 5.08
with respect to the time prior to such replacement.
Section 6. Guarantee.
6.01 The Guarantee. The Subsidiary Guarantors hereby jointly and severally
guarantee to each Lender and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the following obligations (such
obligations being herein collectively called the "Guaranteed Obligations"):
(a) the principal of and interest on the Revolving Credit Loans made
by the Lenders to, and the Revolving Credit Notes and Reimbursement
Obligations held by each Lender of, the Borrower; and
(b) subject to the limitation set forth in Section 6.10, the principal
of and interest on the Facility A and Facility B Term Loans made by the
Lenders to, and the Facility A and Facility B Term Loan Notes of, the
Borrower,
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in each case strictly in accordance with the terms thereof. The Subsidiary
Guarantors hereby further jointly and severally agree that, subject to the
limitation set forth in Section 6.10, if the Borrower shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, Subsidiary Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional. Subject to the limitation set forth in
Section 6.10, the obligations of the Subsidiary Guarantors under Section 6.01
are absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Borrower under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 6.02 that the obligations of the Subsidiary Guarantors hereunder shall
be absolute and unconditional, joint and several, under any and all
circumstances. Without limiting the generality of the foregoing, but subject to
the limitation set forth in Section 6.10, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Subsidiary Guarantors hereunder, which shall remain absolute and unconditional
as described above:
(i) at any time or from time to time, without notice to the Subsidiary
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed
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Obligations shall be modified, supplemented or amended in any respect, or
any right under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be waived or any other
Guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt with;
or
(iv) any Lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. Subject to the limitation set forth in Section 6.10,
the obligations of the Subsidiary Guarantors under this Section 6 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of the Borrower in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Subsidiary Guarantors jointly and severally
agree that they will indemnify the Administrative Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Administrative Agent or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04 Subrogation. Each Subsidiary Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Bankruptcy
Code) or otherwise by reason of any payment by it pursuant to the provisions of
this Section 6 and further agrees with the Borrower for the benefit of its
creditors (including, without limitation, each Lender and the Administrative
Agent) that any such payment by it shall
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constitute a contribution of capital by such Subsidiary Guarantor to the
Borrower (or an investment in the equity capital of the Borrower by such
Subsidiary Guarantor).
6.05 Remedies. The Subsidiary Guarantors jointly and severally agree that,
as between the Subsidiary Guarantors and the Lenders, the obligations of the
Borrower under this Agreement and the Notes may be declared to be forthwith due
and payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 10) for
purposes of Section 6.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 6.01.
6.06 Instrument for the Payment of Money. Each Subsidiary Guarantor hereby
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
6.07 Continuing Guarantee. Subject to the limitation set forth in Section
6.10, the guarantee in this Section 6 is a continuing guarantee, and shall apply
to all Guaranteed Obligations whenever arising.
6.08 Rights of Contribution. The Subsidiary Guarantors hereby agree, as
between themselves, that if any Subsidiary Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Subsidiary
Guarantor of any Guaranteed Obligations, each other Subsidiary Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence),
pay to such Excess Funding Guarantor an amount equal to such Subsidiary
Guarantor's Pro Rata Share (as defined below and determined, for this purpose,
without reference to the Properties, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Guarantor under this Section 6.08 shall be subordinate and
subject in right of
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payment to the prior payment in full of the obligations of such Subsidiary
Guarantor under the other provisions of this Section 6 and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding Guarantor" means, in
respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all Properties of such Subsidiary
Guarantor (excluding any shares of stock of, or ownership interest in, any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of
such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all Properties of all of the Obligors
exceeds the amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of the Borrower and the Subsidiary Guarantors hereunder and under
the other Loan Documents) of all of the Obligors, determined (A) with respect to
any Subsidiary Guarantor that is a party hereto on the Closing Date, as of the
Closing Date, and (B) with respect to any other Subsidiary Guarantor, as of the
date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
6.09 General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 would otherwise, taking into account the provisions of Section
6.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 6.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated
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to the claims of other creditors as determined in such action or proceeding.
6.10 Dollar Limitation on Guarantee Obligations. Anything herein to the
contrary notwithstanding, the aggregate amount for which the Subsidiary
Guarantors shall be obligated in respect of their Guarantee under this Section 6
of the Facility A and Facility B Term Loans and Facility A and Facility B Term
Loan Notes shall be equal to an amount (the "Guarantee Limit") equal to the sum
of (a) $12,541,795 (which the Borrower hereby represents and warrants is the
maximum amount of "Purchase Money Indebtedness" or "Capital Lease Obligations"
(as such capitalized terms are defined in the 1995 Senior Notes Indenture)
permitted to be incurred under Section 4.03(b)(vii) of the 1995 Senior Notes
Indenture on the date hereof) plus (b) $5,000,000 (which the Borrower hereby
represents and warrants is the maximum amount of "Indebtedness" (as so defined)
permitted to be incurred under Section 4.03(b)(x) under the 1995 Senior Notes
Indenture on the date hereof). For purposes hereof, it is understood that all
payments and prepayments of Facility A and Facility B Term Loans by the Borrower
or any other Person (other than by any Subsidiary Guarantor pursuant to a demand
by the Administrative Agent or any Lender hereunder) shall be deemed to be
applied first to the portion of the Facility A and Facility B Term Loans and
Facility A and Facility B Term Loan Notes that exceeds the Guarantee Limit and
last to the portion of the Facility A and Facility B Term Loans and Facility A
and Facility B Term Loan Notes that does not exceed the Guarantee Limit.
Section 7. Conditions.
7.01 Initial Extension of Credit of any Class. The obligation of any Lender
to make its initial extension of credit hereunder (whether by making a Loan or
issuing a Letter of Credit) is subject to the conditions precedent that (i) such
extension of credit shall be made on or before December 15, 1996 and (ii) the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c), (d) and (e) below, sufficient photocopies for
each Lender), each of which shall be satisfactory to the Administrative Agent
(and to the extent specified below, to each Lender) in form and substance, it
being understood that, to the extent a form of a particular document is
specified below, such form shall be deemed to be satisfactory to the
Administrative Agent and the Lenders:
(a) Corporate Documents. Certified copies of the charter and by-laws
(or equivalent documents) of each
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Obligor and of all corporate or other authority for each Obligor
(including, without limitation, in the case of any corporate Obligor, board
of director resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery and
performance of such of the Basic Documents to which such Obligor is
intended to be a party and each other document to be delivered by such
Obligor from time to time in connection herewith and the extensions of
credit hereunder (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice in writing
from such Obligor to the contrary).
(b) Officer's Certificate. A certificate of a senior financial officer
of the Borrower, dated the Closing Date, to the effect set forth in the
lettered clauses of the first sentence of Section 7.03.
(c) Opinion of Special New York Counsel to the Obligors. An opinion,
dated the Closing Date, of Baer Marks & Upham LLP, special New York counsel
to the Obligors, substantially in the form of Exhibit D-1, and covering
such other matters as the Administrative Agent or any Lender may reasonably
request (and each Obligor hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to the Arranger. An opinion,
dated the Closing Date, of Milbank, Tweed, Hadley & McCloy, special New
York counsel to the Arranger, substantially in the form of Exhibit F (and
the Arranger hereby instructs such counsel to deliver such opinion to the
Lenders).
(e) Notes. The Notes, duly completed and executed for each Lender.
(f) Revolving Credit Security Agreement. The Revolving Credit Security
Agreement, duly executed and delivered by the Obligors and the
Administrative Agent, together with the certificates identified under the
name of each Obligor in Annex 1 thereto, in each case accompanied by
undated stock powers executed in blank. In addition, the Obligors shall
have taken such other action (including, without limitation, delivering to
the Administrative Agent, for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to
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perfect the security interests created pursuant to the Revolving Credit
Security Agreement.
(g) Existing Credit Agreement. Evidence that the principal of and
interest on, and all other amounts owing under the Existing Credit
Agreement shall have been (or shall be simultaneously) paid in full, that
any commitments to extend credit under the Existing Credit Agreement shall
have been (or shall be simultaneously) canceled or terminated and that all
Guarantees in respect of, and all Liens securing, such Indebtedness shall
have been released (or arrangements for such release satisfactory to the
Administrative Agent shall have been made).
(h) Insurance. Certificates of insurance evidencing the existence of
all insurance required to be maintained by the Obligors pursuant to Section
9.04 and the designation of the Administrative Agent as the loss payee or
additional named insured, as the case may be, thereunder to the extent
required by Section 9.04, with respect to all tangible real or personal
Property of the Obligors that constitutes collateral security for the
Revolving Credit Loans, such certificates to be in such form and contain
such information as is specified in Section 9.04. In addition, the Borrower
shall have delivered (i) a certificate of a senior financial officer of the
Borrower setting forth the insurance obtained by it in accordance with the
requirements of Section 9.04 and stating that such insurance is in full
force and effect and that all premiums then due and payable thereon have
been paid and (ii) a written report, dated reasonably near the date such
Loans are being made, of AON Risk Services, Inc., or any other firm of
independent insurance brokers of nationally recognized standing, as to such
insurance and stating that, in their opinion, such insurance is in
compliance with the provisions of Section 9.04.
(i) Environmental Surveys. Copies of the environmental surveys and
assessments with respect to the Existing Parks referred to in Schedule II.
(j) Solvency Analysis. An analysis from a senior financial officer of
the Borrower to the effect that, as of the Closing Date and after giving
effect to the initial Loan hereunder and to the other transactions
contemplated hereby:
(i) the aggregate value of all Properties of the Borrower and its
Subsidiaries at their present fair saleable value (i.e., the amount
that may be realized
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within a reasonable time, considered to be six months to one year,
either through collection or sale at the regular market value,
conceiving the latter as the amount that could be obtained for the
Property in question within such period by a capable and diligent
businessman from an interested buyer who is willing to purchase under
ordinary selling conditions), exceed the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries,
(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with which to
conduct their business operations as heretofore conducted and
(iii) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay their
debts as they mature.
Such certificate shall include a statement to the effect that the financial
projections and underlying assumptions contained in such analysis are, fair
and reasonable and accurately computed.
(k) Other Documents. Such other documents as the Administrative Agent
or any Lender or special New York counsel to the Arranger may reasonably
request.
The obligation of any Lender to make its initial extension of credit
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to the
Arranger, in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Notes and the other Loan Documents and the
extensions of credit hereunder (to the extent that statements for such fees and
expenses have been delivered to the Borrower).
7.02 Each Term Loan of any Class. The obligation of any Lender to make any
Facility A or Facility B Term Loan hereunder is subject to the conditions
precedent that the Administrative Agent shall have received the following
documents (with, in the case of clauses (b) and (c) below, sufficient
photocopies for each Lender), each of which shall be reasonably satisfactory to
the Administrative Agent (and to the extent
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specified below, to each Lender) in form and substance, it being understood
that, to the extent a form of a particular document is specified below, such
form shall be deemed to be satisfactory to the Administrative Agent and the
Lenders:
(a) Notice of Capital Transaction. The Borrower shall have given the
Administrative Agent, and special New York counsel to the Arranger, at
least ten Business Days prior written notice of its intention to finance
the respective Capital Transaction with Facility A or Facility B Loans
hereunder (which notice shall not, unless otherwise specified by the
Borrower, constitute a notice of borrowing under Section 4.05), which
notice shall set forth a brief description of the Property or equipment
purchased or to be purchased in such Capital Transaction and shall be
accompanied by copies of the respective Acquisition Agreement or purchase
order pursuant to which such purchase is to be consummated. In addition,
the Borrower shall have delivered to the Administrative Agent, and to
special New York counsel to the Arranger, (i) a certificate of a senior
financial officer of the Borrower to the effect that such Capital
Transaction complies with the requirements of clauses (b) or (c), as
applicable, of Section 9.14 (including in respect of the useful life and
value of the Property or equipment being acquired) and (ii) such other
documents and agreements, and such other information, with respect to such
Capital Transaction as the Administrative Agent or such special counsel
shall reasonably request. The Administrative Agent hereby acknowledges
that, in the case of the Initial Acquisitions, the foregoing notice has
been delivered at least ten Business Days prior to the date hereof.
(b) Opinion of Special New York Counsel to the Obligors. An opinion,
dated the date of such Loan, of Baer Marks & Upham LLP, special New York
counsel to the Obligors, substantially in the form of Exhibit D-2, and
covering such other matters as the Administrative Agent or any Lender may
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent), it being
understood that, if the respective Property or equipment to be acquired is
to be located in the State of New York, then said special New York counsel
may incorporate into such opinion the additional matters to be covered by
the opinion of local counsel provided for in clause (c) below.
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(c) Opinion of Local Counsel. An opinion, dated the date of such Loan,
of local counsel in the State in which the Property or equipment purchased
or to be purchased in such Capital Transaction is located, substantially in
the form of Exhibit E, and covering such other matters as the
Administrative Agent may reasonably request (and each Obligor hereby
instructs such counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(d) Equipment Security Agreement. An Equipment Security Agreement,
duly executed and delivered by the Borrower and the Administrative Agent,
covering the Property or items of equipment purchased or to be purchased.
In addition, the Borrower shall have taken such other action (including,
without limitation, delivering to the Administrative Agent, for filing,
appropriately completed and duly executed copies of Uniform Commercial Code
financing statements) as the Administrative Agent shall have requested in
order to perfect the security interests created pursuant to such Equipment
Security Agreement.
(e) Mortgage and Title Insurance. To the extent the proceeds of such
Loan are to be applied to the purchase (or to reimburse the Borrower for
the purchase) by the Borrower in whole or in part of real property (or, to
the extent the Administrative Agent deems that the execution and delivery
of a Mortgage with respect to the items of equipment purchased or to be
purchased is appropriate in the circumstances), the following documents,
each of which shall be executed (and, where appropriate, acknowledged) by
Persons satisfactory to the Administrative Agent:
(i) a Mortgage covering such real property (or such items of
equipment), which shall secure the obligations of the Borrower
hereunder in respect of such Loans, in each case duly executed and
delivered by the Borrower in recordable form, in form and substance
satisfactory to the Administrative Agent;
(ii) to the extent such real property constitutes a leasehold
interest as to which the Borrower is the lessee, a consent of the
respective landlord to such Mortgage (and, to the extent not already
recorded, a Memorandum of Lease), in recordable form, in each case in
form and substance satisfactory to the Administrative Agent;
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(iii) in the case of any acquisition of real property, a
mortgagee policy of title insurance on forms of and issued by one or
more title companies satisfactory to the Administrative Agent,
insuring the validity and priority of the Liens created under such
Mortgage for and in amounts satisfactory to the Administrative Agent,
subject only to such exceptions as are satisfactory to the
Administrative Agent and, to the extent necessary under applicable
law, for filing in the appropriate county land offices, Uniform
Commercial Code financing statements covering fixtures, in each case
appropriately completed and duly executed; and
(iv) in the case of any acquisition of real property, as-built
surveys of recent date of the real property to be covered by such
Mortgage (or, if deemed appropriate by the Administrative Agent, of
the real property on which such items of equipment are to be
situated), showing such matters as may be required by the
Administrative Agent, which surveys shall be in form and content
acceptable to the Administrative Agent, and certified to the
Administrative Agent and the respective title companies, and shall
have been prepared by a registered surveyor acceptable to the
Administrative Agent.
In addition, the Borrower shall have paid to the respective title companies
all expenses and premiums of such title companies in connection with the
issuance of such policies and in addition shall have paid to such title
companies an amount equal to the recording and stamp taxes payable in
connection with recording such Mortgages in the appropriate county land
offices.
(f) Revolving Credit Mortgage. To the extent the same can be recorded
without incurrence of material mortgage recording taxes, if the proceeds of
such Loan are to be applied to the purchase (or to reimburse the Borrower
for the purchase) by the Borrower in whole or in part of real property, a
Mortgage covering such real property, which shall secure the obligations of
the Borrower hereunder in respect of the Revolving Credit Loans, in each
case duly executed and delivered (and, where appropriate, acknowledged) by
Persons satisfactory to the Administrative Agent in recordable form, in
form and substance satisfactory to the Administrative Agent (which Mortgage
shall be junior in priority to the Mortgage executed and delivered pursuant
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to clause (e) above), it being understood that, to the extent the
respective real property to be covered by such Mortgage is not owned (but
is leased) by the Borrower, the Borrower shall request the respective
lessor of such property to execute a consent to such Mortgage in form and
substance satisfactory to the Administrative Agent (and shall use
reasonable efforts to obtain such consent), but shall not be required to
deliver such consent in the event such landlord refuses to execute and
deliver the same (and shall not be required to execute and deliver such
Mortgage if the same would result in a default under the respective lease).
In addition, the Borrower shall have paid to the respective title companies
an amount equal to the recording and stamp taxes payable in connection with
recording such Mortgages in the appropriate county land offices.
(g) Repayment of Existing Indebtedness. Evidence that the principal of
and interest on, and all other amounts owing in respect of, any
Indebtedness or other obligations (including, without limitation, any
contingent or other amounts payable in respect of letters of credit)
secured by any Lien on the Property or equipment purchased or to be
purchased shall have been (or shall be simultaneously) released (or
arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(h) Insurance. To the extent that the proceeds of such Loans are being
applied to finance in whole or in part any Acquisition, certificates of
insurance evidencing the existence of all insurance required to be
maintained by the Obligors pursuant to Section 9.04, and the designation of
the Administrative Agent as the loss payee or additional named insured (as
the case may be) thereunder, to the extent required by Section 9.04, with
respect to the Property or equipment purchased or to be purchased in such
Capital Transaction, such certificates to be in such form and contain such
information as is specified in Section 9.04. In addition, the Borrower
shall have delivered (i) a certificate of a senior financial officer of the
Borrower setting forth the insurance obtained by it in accordance with the
requirements of Section 9.04 and stating that such insurance is in full
force and effect and that all premiums then due and payable thereon have
been paid and (ii) a written report, dated reasonably near the date such
Loans are being made, of AON Risk Services, Inc., or any other firm of
independent insurance brokers of nationally recognized standing, as to such
insurance and stating that, in their opinion, such insurance is in
compliance with the
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provisions of Section 9.04 as to the Property or equipment purchased or to
be purchased in such Capital Transaction.
(i) Environmental Survey. To the extent the proceeds of such Loan are
to be applied to consummate the Initial Acquisitions, the environmental
surveys and assessments with respect to the Parks to be purchased pursuant
to such Acquisitions referred to in Schedule II; otherwise, to the extent
the proceeds of such Loans are to be applied to the purchase (or to
reimburse the Borrower for the purchase) in whole or in part of real
property, an environmental survey and assessment prepared by a firm of
licensed engineers (familiar with the identification of toxic and hazardous
substances) in form and substance satisfactory to the Administrative Agent,
such environmental survey and assessment to be based upon physical on-site
inspections by such firm of such real property, as well as an historical
review of the uses of such real property.
(j) Borrower Portion of Purchase Price. Evidence that at least 50% of
the aggregate purchase price (including related fees and expenses) of the
Property purchased or to be purchased in such Acquisition, or the items of
equipment purchased or to be purchased, shall be paid in cash by the
Borrower concurrently with the making of such Loan.
(k) Intercompany Lease. In the case of any equipment purchased or to
be purchased that is to be used at a Park other than a Park owned by the
Borrower, the Borrower and the respective Subsidiary owning such park shall
have entered into a lease in form and substance satisfactory to the
Administrative Agent and the Arranger covering such equipment.
(l) Consummation of Initial Acquisition. To the extent that the
proceeds of such Loans are being applied to finance in whole or in party
any Acquisition, evidence that such Acquisition shall have been (or shall
be simultaneously) consummated in all material respects in accordance with
the terms of the respective Acquisition Agreement (except for any
modifications, supplements or material waivers thereof, or written consents
or determinations made by the parties thereto, that shall be satisfactory
to the Majority Lenders), and the Administrative Agent shall have received
a certificate of a senior financial officer of the Borrower to such effect
and to the effect that attached thereto are true and complete copies of the
documents delivered in connection with the
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closing of such Acquisition pursuant to such Initial Acquisition Agreement.
In addition, the Administrative Agent shall have received copies of the
legal opinions delivered to the Borrower pursuant to such Acquisition
Agreement in connection with such Acquisition, together with a letter from
each Person delivering such opinion (or authorization within such opinion)
authorizing reliance thereon by the Administrative Agent and the Lenders,
it being understood that, in the case of any of the Initial Acquisition
Agreements, the Borrower shall request counsel for the respective seller to
deliver such a reliance letter (and shall use reasonable efforts to obtain
such reliance letter), but shall not be required to deliver such reliance
letter in the event such counsel refuses to execute and deliver the same.
(m) 1995 Senior Notes Indenture Compliance. The Borrower shall have
delivered to the Administrative Agent a certificate of a senior financial
officer of the Borrower demonstrating that such Loans may be permissibly
incurred under the tests set forth in Section 4.03 of the 1995 Senior Notes
Indenture.
(n) Other Documents. Such other documents as the Administrative Agent
or any Lender or special New York counsel to the Arranger may reasonably
request.
7.03 All Extensions of Credit. The obligation of the Lenders to make any
Loan to the Borrower upon the occasion of each extension of credit hereunder
(including the initial extension of credit, but excluding any Continuation or
Conversion of Loans) is subject to the further conditions precedent that, both
immediately prior to the making of such extension of credit and also after
giving effect thereto and to the intended use thereof:
(a) the representations and warranties made by the Borrower in Section
8, and by each Obligor in each of the other Loan Documents to which it is a
party, shall be true and complete on and as of the date of the making of
such extension of credit with the same force and effect as if made on and
as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date);
and
(b) no Default shall have occurred and be continuing.
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Each notice of borrowing, or request for issuance of a Letter of Credit, by the
Borrower hereunder shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and the Lenders that:
8.01 Organization; Powers. Each of the Borrower and its Subsidiaries (other
than Inactive Subsidiaries, as to which the Borrower makes no representation or
warranty): (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; and (b) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
8.02 Financial Condition. The Borrower has heretofore furnished to each of
the Lenders the following financial statements:
(i) the consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1993, 1994 and 1995 and the related
consolidated statements of operations, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for the respective fiscal years ended
on said dates, with the opinion thereon of KPMG Peat Marwick LLP;
(ii) Park-level statements of operating data for the nine-month period
ended September 30, 1996, for each of the Existing Parks;
(iii) a pro forma unaudited consolidated statement of operations data
of the Borrower and its Subsidiaries as at the fiscal year ended December
31, 1995, prepared under the assumption that the acquisition of all of the
capital stock of Funtime Parks, Inc. in August 1995 had occurred as of
January 1, 1995;
(iv) an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at June 30, 1996 and the
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related unaudited consolidated statements of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries for the
six-month period ended on said date; and
(v) with respect to the Parks to be acquired in the Initial
Acquisitions, (x) audited financial statements for the two most recent
complete fiscal years of the respective sellers of such Parks (except that
the fiscal year financial statements of the seller under the Great Escape
Acquisition are not audited, but have been reviewed, by the respective
independent accountants) and (y) in the case of each Park to be acquired in
such Acquisition, Park-level statements of operating data for the
nine-month period ended September 30, 1996.
All such financial statements are complete and fairly present in all material
respects the actual or pro forma (as the case may be) consolidated financial
condition of the Borrower and its Subsidiaries (or, in the case of clause (ii)
or (v) above, the respective Parks and entities referred to therein) as at said
respective dates and the actual or pro forma (as the case may be) consolidated
results of their operations for the applicable periods ended on said respective
dates, all in accordance with generally accepted accounting principles and
practices applied on a consistent basis (except that, in the case of Park-level
operating data, the Borrower represents only that such statements have been
prepared in accordance with the Borrower's, or the respective seller's, internal
accounting practices). None of the Borrower nor any of its Subsidiaries has on
the date hereof any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or provided
for in said balance sheet as at June 30, 1996. Since June 30, 1996, there has
been no material adverse change in the consolidated financial condition,
operations, business or prospects taken as a whole of the Borrower and its
Subsidiaries from that set forth in said financial statements as at said date.
8.03 Litigation. Except as set forth in Schedule V, there are no legal or
arbitral proceedings, or any proceedings by or before any governmental or
regulatory authority or agency, now pending or (to the knowledge of the
Borrower) threatened against the Borrower or any of its Subsidiaries that, if
adversely determined, could (either individually or in the aggregate) have a
Material Adverse Effect.
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8.04 No Breach. None of the execution and delivery of this Agreement and
the Notes and the other Basic Documents, the consummation of the transactions
herein and therein contemplated or compliance with the terms and provisions
hereof and thereof will conflict with or result in a breach of, or require any
consent under, the charter, by-laws or other organizational documents of any
Obligor, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any agreement or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Borrower or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument,
except that the granting of a Lien upon contracts entered into in the ordinary
course of business by the Borrower and its Subsidiaries (which contracts are
not, individually or in the aggregate, material to the operations of any Park)
may conflict with restrictions upon assignments contained in such contracts.
8.05 Action. Each Obligor has all necessary corporate or other power,
authority and legal right to execute, deliver and perform its obligations under
each of the Basic Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Basic Documents to which it is a
party have been duly authorized by all necessary corporate or other action on
its part (including, without limitation, any required shareholder approvals);
and this Agreement has been duly and validly executed and delivered by each
Obligor and constitutes, and each of the Notes and the other Basic Documents to
which it is a party when executed and delivered by such Obligor (in the case of
the Notes, for value) will constitute, its legal, valid and binding obligation,
enforceable against each Obligor in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
8.06 Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any governmental or regulatory authority or agency, or
any securities exchange, are necessary for the execution, delivery or
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performance by any Obligor of this Agreement or any of the other Basic Documents
to which it is a party or for the legality, validity or enforceability hereof or
thereof, except for filings and recordings in respect of the Liens created
pursuant to the Security Documents and except for the authorizations, approvals
and consents contemplated by the Acquisition Agreements, each of which will be
duly issued or obtained prior to the date on which the respective Acquisitions
shall be consummated and each of which shall be in full force.
8.07 Properties and Permits, Etc.
(a) Each of the Borrower and its Subsidiaries (other than Inactive
Subsidiaries, as to which the Borrower makes no representation or warranty) has
good and marketable title to, or valid leasehold interests in, all of its
material Properties, except for defects in title that do not materially
interfere with its ability to conduct its business as currently conducted or to
utilize such properties and assets for their intended purposes. All such
material Properties are free and clear of Liens, other than Liens permitted by
Section 9.06.
(b) Each of the Borrower and its Subsidiaries (other than Inactive
Subsidiaries, as to which the Borrower makes no representation or warranty) has
complied with all material obligations under all material leases to which it is
a party and all such leases are in full force and effect. Each of the Borrower
and its Subsidiaries (other than Inactive Subsidiaries, as to which the Borrower
makes no representation or warranty) enjoys peaceful and undisturbed possession
under all such material leases.
(c) Each of the Borrower and its Subsidiaries (other than Inactive
Subsidiaries, as to which the Borrower makes no representation or warranty)
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by the
Borrower and such Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(d) Each of the Borrower and its Subsidiaries (other than Inactive
Subsidiaries, as to which the Borrower makes no representation or warranty)
holds all material permits, licenses and other governmental authorizations
necessary to enable it to operate the Existing Parks as heretofore conducted
(other than seasonal permits, which it anticipates will be obtained in the
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normal course), and will, upon the consummation of any Acquisition, hold all
material permits, licenses and other governmental authorizations necessary to
enable it to operate the respective Park acquired in such Acquisition (other
than seasonal permits, which it anticipates will be obtained in the normal
course and, in the case of the Parks to be acquired in the Initial Acquisitions,
other than liquor licenses which it anticipates will be obtained in the normal
course).
8.08 Environmental Matters. Each of the Borrower and its Subsidiaries has
obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business as
now being or as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization would not (either individually or in
the aggregate) have a Material Adverse Effect. Each of such permits, licenses
and authorizations is in full force and effect and each of the Borrower and its
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not (either individually or in the aggregate) have a Material
Adverse Effect.
In addition, except as set forth in Schedule II (or, in the case of the
Existing Parks and the Parks to be acquired pursuant to the Initial Acquisition,
as set forth in the reports referred to in Schedule II):
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint is pending, no
penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by the Borrower or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of the
business of the Borrower or any of its Subsidiaries or with respect to any
generation, treatment, storage, recycling, transportation, discharge or
disposal, or any Release of any Hazardous Materials generated by the
Borrower or any of its Subsidiaries in each case that (either individually
or in
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the aggregate) would materially adversely affect the operations of any
Park.
(b) Neither the Borrower nor any of its Subsidiaries owns, operates or
leases on the date hereof a treatment, storage or disposal facility
requiring a permit under the Resource Conservation and Recovery Act of
1976, as amended, or under any comparable state or local statute; and none
of the conditions set forth below exists that would (either individually or
in the aggregate) materially adversely affect the operations of any Park or
have a Material Adverse Effect:
(i) no polychlorinated biphenyls (PCB's) are or have been present
at any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has been
present at any site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any site
or facility now or previously owned, operated or leased by the
Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at, on or
under any site or facility now or previously owned, operated or leased
by the Borrower or any of its Subsidiaries that would (either
individually or in the aggregate) have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has transported
or arranged for the transportation of any Hazardous Material to any
location that is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the NPL by
the Environmental Protection Agency
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in the Comprehensive Environmental Response and Liability Information
System, as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any
similar state or local list or that is the subject of Federal, state or
local enforcement actions or other investigations that may lead to
Environmental Claims against the Borrower or any of its Subsidiaries, in
any such case that would (either individually or in the aggregate)
materially adversely affect the operations of any Park or have a Material
Adverse Effect.
(d) As of the date hereof, no Hazardous Material generated by the
Borrower or any of its Subsidiaries has been recycled, treated, stored,
disposed of or Released by the Borrower or any of its Subsidiaries at any
location other than those listed in Schedule II.
(e) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Borrower or any of its
Subsidiaries and no site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring
investigation or clean-up, in any such case that would (either individually
or in the aggregate) materially adversely affect the operations of any Park
or have a Material Adverse Effect.
(f) No Liens have arisen under or pursuant to any Environmental Laws
on any site or facility owned, operated or leased by the Borrower or any of
its Subsidiaries, and no government action has been taken or is in process
that could subject any such site or facility to such Liens and neither the
Borrower nor any of its Subsidiaries would be required to place any notice
or restriction relating to the presence of Hazardous Materials at any site
or facility owned by it in any deed to the real property on which such site
or facility is located, in any such case to the extent such Lien secured
obligations (or would secure obligations) in an amount in excess of
$100,000 or that would adversely affect the operation of any Park.
(g) All environmental investigations, studies, audits, tests, reviews
or other similar analyses conducted by or that are in the possession of the
Borrower or any of its Subsidiaries in relation to facts, circumstances or
conditions at or affecting any site or facility now or previously owned,
operated or leased by the Borrower or any
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of its Subsidiaries and that could result in a Material Adverse Effect have
been made available to the Lenders, including the environmental surveys and
assessments set forth in Schedule II.
8.09 Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
governmental authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
8.10 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Borrower nor any of
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Taxes. The Borrower and its Subsidiaries are members of an affiliated
group of corporations filing consolidated returns for Federal income tax
purposes, of which the Borrower is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. The Borrower and its Subsidiaries have
filed all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes and other governmental charges are, in
the opinion of the Borrower, adequate.
8.13 ERISA. Each Plan, and, to the knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no ERISA
Event has occurred and is continuing as to which the Borrower would be under an
obligation to furnish a report to the Lenders under Section 9.02(c).
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8.14 True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Obligors to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole (together with the Information Memorandum) do not contain
any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
All written information furnished after the date hereof by the Borrower and
its Subsidiaries to the Administrative Agent and the Lenders in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known
to the Borrower that could have a Material Adverse Effect that has not been
disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.15 Use of Credit. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock.
8.16 Material Agreements and Liens.
(a) Part A of Schedule I is a complete and correct list of each credit
agreement, loan agreement, indenture, purchase agreement, guarantee, letter of
credit or other arrangement providing for or otherwise relating to any
Indebtedness to, or guarantee of Indebtedness by, the Borrower or any of its
Subsidiaries outstanding on the date hereof, the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $100,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each
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such arrangement is correctly described in Part A of Schedule I; the aggregate
of all such Indebtedness, the principal or face amount of which is under
$100,000 and which is accordingly not so listed does not exceed $250,000.
(b) Part B of Schedule I is a complete and correct list of each Lien
securing Indebtedness of any Person outstanding on the date hereof, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000 and covering any Property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the Property covered by each such Lien is correctly described
in Part B of Schedule I.
8.17 Capitalization. The authorized capital stock of the Borrower consists,
on the date hereof, of an aggregate of 30,500,000 shares consisting of (i)
30,000,000 shares of common stock, par value $.05 per share, of which 11,357,232
shares were issued and outstanding as of September 30, 1996 (and 26,345 shares
of which were held in treasury as at said date), each of which shares is fully
paid and nonassessable and (ii) 500,000 shares of preferred stock, of which none
are issued and outstanding on the date hereof (and no shares of which were held
in treasury), each of which shares is fully paid and nonassessable. As of the
date hereof, (x) except for warrants held by the chief executive officer of the
Borrower and options issued pursuant to employee plans, there are no outstanding
Equity Rights with respect to the Borrower and (y) there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
8.18 Subsidiaries and Investments.
(a) Set forth in Part A of Schedule III is a complete and correct list of
all of the Subsidiaries of the Borrower as of the date hereof (other than
Inactive Subsidiaries, as to which the Borrower makes no representation or
warranty), together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as
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disclosed in Part A of Schedule III, as of the date hereof, (x) each of the
Borrower and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part A of Schedule III, (y) all of the issued and outstanding capital stock
of each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person. The aggregate assets of all Inactive Subsidiaries do not have a
value in excess of $10,000.
(b) Set forth in Part B of Schedule III is a complete and correct list of
all Investments (other than Investments disclosed in Part A of Schedule III or
of the type referred to in clauses (b), (c), (d) or (e) of Section 9.08) held by
the Borrower or any of its Subsidiaries in any Person on the date hereof and,
for each such Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in Part B
of Schedule III, each of the Borrower and its Subsidiaries owns, free and clear
of all Liens (other than Liens created pursuant to the Security Documents), all
such Investments.
(c) None of the Subsidiaries of the Borrower is, on the date hereof,
subject to any indenture, agreement, instrument or other arrangement of the type
described in Section 9.15(c), other than the 1995 Senior Notes Indenture.
(d) Each of the Subsidiaries of the Borrower on the date hereof (other than
certain of the Inactive Subsidiaries) is a "Restricted Subsidiary" under and as
defined in the 1995 Senior Notes Indenture.
8.19 Parks; Real Property. Set forth in Part A of Schedule IV is a complete
and correct list of all of the amusement and attraction parks owned by the
Obligors on the date hereof. Set forth in Part B of Schedule IV is a complete
and correct list, as of the date hereof of all of the real property interests
held by the Borrower and its Subsidiaries, indicating in each case whether the
respective Property is owned or leased, the identity of the owner or lessee and
the location of the respective Property.
8.20 Insurance. Set forth on Schedule VI is a complete and correct
description of all insurance maintained by the Obligors as of the date hereof.
As of the date hereof, all
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of such insurance is in full force and effect and no premiums are past due in
respect thereof.
8.21 Certain Agreements, Etc. The Borrower has heretofore delivered to the
Arranger a true and complete copy (including any modifications or supplements
thereto) of each of the Initial Acquisition Agreements, the 1995 Senior Notes
Indenture, the Leases and the Allocation Agreement.
Section 9. Covenants of the Borrower. The Borrower covenants and agrees
with the Lenders and the Administrative Agent that, so long as any Commitment,
Loan or Letter of Credit Liability is outstanding and until payment in full of
all amounts payable by the Borrower hereunder:
9.01 Financial Statements and Other Information. The Borrower shall deliver
to each of the Lenders:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower:
(x) consolidated statements of operations, shareholders' equity
and cash flows of the Borrower and its Subsidiaries for such fiscal
year and the related consolidated balance sheets of the Borrower and
its Subsidiaries as at the end of such fiscal year, setting forth in
each case in comparative form the corresponding consolidated figures
for the preceding fiscal year, accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that such consolidated financial
statements fairly present the consolidated financial condition and
results of operations of the Borrower and its Subsidiaries as at the
end of, and for, such fiscal year in accordance with generally
accepted accounting principles, and a statement of such accountants to
the effect that, in making the examination necessary for their
opinion, nothing came to their attention that caused them to believe
that the Borrower was not in compliance with Section 9.10, insofar as
such Section relates to accounting matters,
(y) consolidating statements of operations of the Borrower and
its Subsidiaries for such fiscal year and the related consolidating
balance sheets of the Borrower and its Subsidiaries as at the end of
such
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fiscal year, accompanied by a certificate of a senior financial
officer of the Borrower, which certificate shall state that such
consolidating financial statements fairly present the respective
individual unconsolidated financial condition and results of
operations of the Borrower and of each of its Subsidiaries, in each
case in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal year, and
(z) Park-level statements of operating data (including revenue
and expense items and showing the calculation of EBITDA, or
equivalent, for the respective Park) for such fiscal year for each of
the Parks of the Borrowers and its Subsidiaries, in each case prepared
in accordance with the Borrower's internal accounting practices in
form and detail substantially similar to the corresponding statements
set forth in the Information Memorandum;
(b) as soon as available and in any event within 45 days after the end
of each quarterly fiscal period of each fiscal year of the Borrower:
(x) consolidated statements of operations, shareholders' equity
and cash flows of the Borrower and its Subsidiaries for such period
and for the period from the beginning of the respective fiscal year to
the end of such period, and the related consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such period,
setting forth in each case in comparative form the corresponding
consolidated figures for the corresponding periods in the preceding
fiscal year (except that, in the case of balance sheets, such
comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a senior financial officer of the
Borrower, which certificate shall state that such consolidated
financial statements fairly present the consolidated financial
condition and results of operations of the Borrower and its
Subsidiaries, in each case in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and
for, such period (subject to normal year-end audit adjustments), and
(y) Park-level statements of operating data (including revenue
and expense items and showing the
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calculation of EBITDA, or equivalent, for the respective Park) for the
period from the beginning of such fiscal year to the end of such
fiscal quarter and setting forth in comparative form the figures for
the corresponding period in the preceding fiscal year, in each case
prepared in accordance with the Borrower's internal accounting
practices in form and detail substantially similar to the
corresponding statements set forth in the Information Memorandum;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section 9.01, a certificate of a senior financial
officer of the Borrower (i) to the effect that no Default has occurred and
is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Borrower has taken or proposes to take with respect thereto) and (ii)
setting forth in reasonable detail the computations necessary to determine
whether the Borrower was in compliance with Sections 9.08(i), 9.09 or 9.10
as of the end of the respective quarterly fiscal period or fiscal year;
(d) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, that the Borrower shall
have filed with the Securities and Exchange Commission (or any governmental
agency substituted therefor) or any national securities exchange;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally or to holders of the 1995 Senior Notes or Subordinated
Indebtedness generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon receipt thereof, copies of any management letters
prepared by the Borrower's independent public accountants with respect to
the audit of the financial statements of the Borrower and its Subsidiaries;
(g) within 31 days after the end of each fiscal year, a detailed pro
forma annual operating budget for the following fiscal year in form and
detail satisfactory to the Administrative Agent;
(h) within five Business Days after the end of each of the months of
June, July, August, September and October, a performance report detailing
on a park-by-park basis
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attendance and revenue for the preceding month and showing a comparison to
budget and to the same period in the prior year; and
(i) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrower or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA), or
compliance with the terms of this Agreement, as any Lender or the
Administrative Agent may reasonably request.
9.02 Notices of Material Events. The Borrower will furnish the following to
the Administrative Agent and each Lender in writing:
(a) promptly after the Borrower knows or any executive officer of the
Borrower has actual knowledge of facts that would give him or her reason to
believe that any Default has occurred, notice of such Default;
(b) prompt notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority or
agency, and of any material development in respect of such legal or other
proceedings, affecting the Borrower or any of its Subsidiaries, except
proceedings that, if adversely determined, would not (either individually
or in the aggregate) have a Material Adverse Effect;
(c) as soon as possible, and in any event within ten days after the
Borrower knows or has reason to believe that any ERISA Event has occurred
or exists, notice of the occurrence of such ERISA Event and a copy of any
report or notice required to be filed with or given to the PBGC by the
Borrower or an ERISA Affiliate with respect to such ERISA Event;
(d) prompt notice of the assertion of any Environmental Claim by any
Person against, or with respect to the activities of, the Borrower or any
of its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation
that, if adversely determined, would not (either individually or in the
aggregate) result
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in remediation costs of less than $100,000 or adversely affect the
operation of any Park; and
(e) prompt notice of any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.02 shall be accompanied by a
statement of a senior financial officer or other executive officer of the
Borrower setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
9.03 Existence, Etc. The Borrower will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all material
permits, licenses and other governmental authorizations necessary to enable
it to operate each of its Parks (other than seasonal permits, which it
anticipates will be obtained in the normal course and, in the case of the
Parks to be acquired in the Initial Acquisitions, other than liquor
licenses which it anticipates will be obtained in the normal course),
provided that nothing in this Section 9.03 shall prohibit any transaction
expressly permitted under Section 9.05;
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could (either individually or in the
aggregate) have a Material Adverse Effect;
(c) pay and discharge all Federal income taxes and all other material
taxes, assessments and governmental charges or levies imposed on it or on
its income or profits or on any of its Property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
(d) maintain and preserve all of its Properties material to the
conduct of the business and operations of the Borrower and its Subsidiaries
(taken as a whole) in good working order and condition, provided that, in
the case of any of the Property that is collateral security for any
Facility A or Facility B Term Loan, the Borrower will, and
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will cause each of its Subsidiaries to, maintain such Property in good
working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent,
upon reasonable notice and during normal business hours, to examine, copy
and make extracts from its books and records, to inspect any of its
Properties, and to discuss its business and affairs with its officers and
the general managers of its Parks, all to the extent reasonably requested
by such Lender or the Administrative Agent (as the case may be).
9.04 Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain insurance with financially sound and reputable insurance companies,
in amounts and against such losses and risks as the Borrower shall from time to
time reasonably determine is sufficient based upon its experience and industry
practice to protect the Borrower and its Subsidiaries and their respective
businesses, provided that the Borrower will in any event maintain (with respect
to itself and each of its Subsidiaries):
(1) Casualty Insurance -- insurance against loss or damage covering
all of the tangible real and personal Property and improvements of the
Borrower and each of its Subsidiaries by reason of any Peril (as defined
below) in such amounts (subject to (x) in the case of general liability
policies, per occurrence deductibles (or self-insurance retentions) not
exceeding $25,000, or $50,000 in the case of wave pool incidents, and (y)
in the case of property insurance deductibles, not exceeding $100,000 or,
in each case, such higher deductible as shall be satisfactory to the
Majority Lenders) as shall be reasonable and customary and sufficient to
avoid the insured named therein from becoming a co-insurer of any loss
under such policy but in any event in an amount (i) in the case of fixed
assets and equipment (including, without limitation, vehicles), at least
equal to 75% of the actual replacement cost of such assets (including,
without limitation, foundation, footings but excluding excavation costs),
subject to deductibles as aforesaid and (ii) in the case of
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inventory, not less than the fair market value thereof, subject to
deductibles as aforesaid.
(2) Automobile Liability Insurance for Bodily Injury and Property
Damage -- insurance against liability for bodily injury and property damage
in respect of all vehicles (whether owned, hired or rented by the Borrower
or any of its Subsidiaries) at any time located at, or used in connection
with, its Properties or operations in such amounts as are then customary
for vehicles used in connection with similar Properties and businesses, but
in any event to the extent required by applicable law.
(3) Comprehensive General Liability Insurance -- insurance against
claims for bodily injury, death or Property damage occurring on, in or
about the Properties (and adjoining streets, sidewalks and waterways, but
only to the extent of the legal liability of the Borrower and its
Subsidiaries therefor) of the Borrower and its Subsidiaries, in such
amounts as are then customary for Property similar in use in the
jurisdictions where such Properties are located (subject to deductibles not
exceeding $100,000, or such higher deductible as shall be satisfactory to
the Majority Lenders).
(4) Workers' Compensation Insurance -- workers' compensation insurance
(including, without limitation, Employers' Liability Insurance) to the
extent required by applicable law.
(5) Product Liability Insurance -- insurance against claims for bodily
injury, death or Property damage resulting from the use of products sold by
the Borrower or any of its Subsidiaries in such amounts as are then
customarily maintained by responsible persons engaged in businesses similar
to that of the Borrower and its Subsidiaries (subject to deductibles not
exceeding $100,000, or such higher deductible as shall be satisfactory to
the Majority Lenders).
(6) Business Interruption Insurance -- insurance against loss of
operating income (in an aggregate amount not less than $40,000,000, as to
the Borrower and its Subsidiaries as a whole, and subject to a deductible,
or self-insured amount, not in excess of $100,000, or such higher
deductible as shall be satisfactory to the Majority Lenders) by reason of
any Peril.
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Such insurance shall be written by financially responsible companies selected by
the Borrower and having an A. M. Best rating of "A" or better and being in a
financial size category of VIII or larger, or by other companies acceptable to
the Majority Lenders, and (other than workers' compensation) shall name the
Administrative Agent as loss payee (to the extent covering risk of loss or
damage to tangible property) and as an additional named insured as its interests
may appear (to the extent covering any other risk). Each policy referred to in
this Section 9.04 shall provide that it will not be canceled or reduced, or
allowed to lapse without renewal, except after not less than 30 days' notice to
the Administrative Agent and shall also provide that the interests of the
Administrative Agent and the Lenders shall not be invalidated by any act or
negligence of the Borrower or any Person having an interest in any Property
covered by a Mortgage nor by occupancy or use of any such Property for purposes
more hazardous than permitted by such policy nor by any foreclosure or other
proceedings relating to such Property. The Borrower will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On or before the Closing Date, the Borrower will deliver to the
Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Borrower hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage and showing
that such insurance will remain in effect through the October 31 falling at
least six months after the date hereof, subject only to the payment of premiums
as they become due (and attaching original copies of any policies with respect
to casualty insurance). Thereafter, on each September 15 in each year
(commencing with the first September 15 after the date hereof), the Borrower
will deliver to the Administrative Agent certificates of insurance evidencing
that all insurance required to be maintained by the Borrower hereunder will be
in effect through the October 31 of the calendar year following the calendar
year of the current September 15, subject only to the payment of premiums as
they become due. In addition, the Borrower will not modify any of the provisions
of any policy with respect to casualty insurance without delivering the original
copy of the endorsement reflecting such modification to the Administrative Agent
accompanied by a written report of AON Risk Services, Inc., or any other firm of
independent insurance brokers of nationally recognized standing, stating that,
in their opinion, such policy (as so modified) is in compliance with the
provisions of this Section 9.04. The Borrower will not obtain or carry separate
insurance concurrent in form or contributing in
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the event of loss with that required by this Section 9.04 unless the
Administrative Agent is the named insured thereunder, with loss payable as
provided herein. The Borrower will immediately notify the Administrative Agent
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Borrower under the foregoing
provisions of this Section 9.04, in the event the Borrower shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 9.04, then the Administrative Agent may, but shall
have no obligation so to do, procure insurance covering the interests of the
Lenders and the Administrative Agent in such amounts and against such risks as
the Administrative Agent (or the Majority Lenders) shall deem appropriate, and
the Borrower shall reimburse the Administrative Agent in respect of any premiums
paid by the Administrative Agent in respect thereof.
For purposes hereof, the term "Peril" means, collectively, fire, lightning,
flood, windstorm, hail, earthquake, explosion, riot and civil commotion,
vandalism and malicious mischief, damage from aircraft, vehicles and smoke and
all other perils covered by the "all-risk" endorsement then in use in the
jurisdictions where the Properties of the Borrower and its Subsidiaries are
located.
9.05 Prohibition of Fundamental Changes.
(a) Mergers. The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), except that the Borrower may liquidate or dissolve
any Inactive Subsidiary or D.L. Holdings, Inc.
(b) Restrictions on Acquisitions. The Borrower will not, nor will it permit
any of its Subsidiaries to, acquire any business or Property from, or capital
stock of, or be a party to any acquisition of, any Person except for purchases
of inventory and other Property to be sold or used in the ordinary course of
business, Investments permitted under Section 9.08(i) and Capital Expenditures
(to the extent the making of such Capital Expenditures will not result in a
violation of any of the provisions of Section 9.10).
(c) Restrictions on Sales. The Borrower will not, nor will it permit any of
its Subsidiaries to, convey, sell, lease,
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transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold
interests, but excluding (i) used equipment, or other Property not used in the
business of the Borrower and its Subsidiaries, so long as the amount thereof
sold in any single fiscal year by the Borrower and its Subsidiaries shall not
have a fair market value in excess of $2,000,000, nor the amount thereof sold by
the Borrower and its Subsidiaries during the term of this Agreement have a fair
market value in excess of $5,000,000, and (ii) any inventory or other Property
sold or disposed of in the ordinary course of business).
(d) Certain Permitted Transactions. Notwithstanding the foregoing
provisions of this Section 9.05:
(i) Intercompany Mergers. Any Subsidiary of the Borrower may be merged
or consolidated with or into: (i) the Borrower if the Borrower shall be the
continuing or surviving corporation or (ii) any other Subsidiary of the
Borrower; provided that if any such transaction shall be between a
Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall
be the continuing or surviving corporation.
(ii) Intercompany Dispositions. Any Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its Property
(upon voluntary liquidation or otherwise) to the Borrower or a Wholly Owned
Subsidiary of the Borrower.
(iii) Initial Acquisitions. The Borrower may consummate the Initial
Acquisitions pursuant to the Initial Acquisition Agreements, so long as
such Acquisitions are consummated on or before January 31, 1997, and so
long as:
(A) to the extent applicable, the Borrower shall have complied
with the provisions of Section 9.15, including, without limitation, to
the extent not theretofore delivered, delivery to the Administrative
Agent of (x) the certificates evidencing the capital stock of any new
Subsidiary formed in connection with such Acquisition, accompanied by
undated stock powers executed in blank, and (y) the agreements,
instruments, opinions of counsel and other documents required under
Section 9.15; and
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(B) immediately prior to such Acquisition and after giving effect
thereto, no Default shall have occurred and be continuing.
(iv) Subsequent Acquisitions. The Borrower or any Wholly Owned
Subsidiary of the Borrower may acquire any amusement or attraction park,
and the related assets, of any other Person (whether by way of purchase of
assets or stock, by merger or consolidation or otherwise), so long as:
(A) either (x) the entire aggregate purchase price is funded with
the proceeds of equity capital issued by the Borrower (including any
such proceeds held on the date hereof) or (y) such Acquisition is
consummated during any fiscal year ending after December 31, 1997, and
the entire aggregate purchase price is not in excess of 50% of the
cumulative sum of Excess Cash Flow for each of the complete fiscal
years during the period commencing on January 1, 1997 through and
including the last day of the most recently ended fiscal year (after
deducting from such 50% all previous Acquisitions made under this
clause (y) and all Restricted Payments made on or before the date of
such Acquisition pursuant to Section 9.09), provided that (I) the
Borrower shall have delivered to the Administrative Agent, at least
ten Business Days (but not more than twenty Business Days) prior to
the date of such Acquisition, a certificate of a senior financial
officer of the Borrower setting forth computations in reasonable
detail demonstrating satisfaction of the foregoing condition as at the
date of such certificate and (II) prior to, or concurrently with, the
making of such Acquisition, the Borrower shall prepay the Loans to the
extent required under Section 2.10(a);
(B) such Acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the acquired
business, and the related assets, are owned either by the Borrower or
a Wholly Owned Subsidiary of the Borrower and, if effected by merger
or consolidation involving the Borrower, the Borrower shall be the
continuing or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Subsidiary of the Borrower,
such Wholly Owned Subsidiary shall be the continuing or surviving
entity;
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(C) such Acquisition (if by purchase of stock) shall be effected
in such manner so that the acquired entity becomes a Wholly Owned
Subsidiary of the Borrower;
(D) the Borrower shall deliver to the Administrative Agent (which
shall promptly forward copies thereof to each Lender (1) as soon as
possible and in any event no later than ten days prior to the
consummation of each such Acquisition (or such earlier date as shall
be five Business Days after the execution and delivery thereof),
copies of the respective agreements or instruments pursuant to which
such Acquisition is to be consummated (including, without limitation,
any related management, non-compete, employment, option or other
material agreements), any schedules to such agreements or instruments
and all other material ancillary documents to be executed or delivered
in connection therewith and (2) promptly following request therefor
(but in any event within three Business Days following such request),
copies of such other information or documents (including, without
limitation, environmental risk assessments) relating to such
Acquisition as the Administrative Agent or the Majority Lenders shall
have reasonably requested (and which is available, or obtainable
within such period by the Borrower with reasonable efforts);
(E) to the extent applicable, the Borrower shall have complied
with the provisions of Section 9.15, including, without limitation, to
the extent not theretofore delivered, delivery to the Administrative
Agent of (x) the certificates evidencing the capital stock of any new
Subsidiary formed or acquired in connection with such Acquisition,
accompanied by undated stock powers executed in blank, and (y) the
agreements, instruments, opinions of counsel and other documents
required under Section 9.15;
(F) to the extent requested by the Borrower, the Borrower and the
Majority Lenders shall have agreed to a supplement to Schedule VII
setting forth pro forma adjustments to be made in determining EBITDA
after giving effect to such Acquisition; and
(G) immediately prior to such Acquisition and after giving effect
thereto, no Default shall have occurred and be continuing.
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9.06 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule I (excluding, however, following the making of the initial Loans
hereunder, the Liens securing Indebtedness outstanding under the Existing
Credit Agreement);
(c) Liens imposed by any governmental authority for taxes, assessments
or charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Borrower or the affected Subsidiaries, as
the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith and by appropriate proceedings, and Liens securing
judgments but only to the extent for an amount and for a period not
resulting in an Event of Default under clause (j) of Section 10;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business; and
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the Property subject thereto or
interfere in any material respect with the
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ordinary conduct of the business of the Borrower or any of its
Subsidiaries.
9.07 Indebtedness. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule I (excluding, however, following the making of the initial
Loans hereunder, the Indebtedness outstanding under the Existing Credit
Agreement);
(c) Subordinated Indebtedness of the Borrower incurred in accordance
with Section 9.11, so long as immediately upon receipt by the Borrower of
the Net Available Proceeds thereof the Borrower shall prepay the Loans to
the extent required under Section 2.10(b);
(d) Indebtedness of Subsidiaries of the Borrower to the Borrower or to
other Subsidiaries of the Borrower, and Guarantees by the Borrower or any
of its Wholly Owned Subsidiaries of obligations of the Borrower or any of
its Wholly Owned Subsidiaries; and
(e) Indebtedness in respect of New Senior Notes that are either issued
in exchange for the 1995 Senior Notes or the proceeds of which are applied
to the redemption of the 1995 Senior Notes, so long as (i) the effective
interest rate in respect of the New Senior Notes is not greater than the
effective interest rate in respect of the 1995 Senior Notes, (ii) the
covenants, events of default and mandatory redemption, repurchase or
prepayment provisions are not more burdensome on the Borrower and its
Subsidiaries, in any case, than the 1995 Senior Notes Indenture, (iii) the
New Senior Notes are unsecured and (iv) the final maturity, and weighted
average life to maturity, of the New Senior Notes are not earlier than the
corresponding maturities of the 1995 Senior Notes, and (v) the other
provisions of the New Senior Notes would not have a material adverse effect
upon the Lenders or the Administrative Agent.
Notwithstanding the foregoing, the Borrower will not incur, nor will it permit
any of its Subsidiaries to incur, after the date hereof, any Indebtedness (other
than the Guarantees of the Subsidiary Guarantors under Section 6) that either
(x) utilizes
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any of the availability for "Purchase Money Indebtedness" or "Capital Lease
Obligations" (as such capitalized terms are defined in the 1995 Senior Notes
Indenture) permitted to be incurred under Section 4.03(b)(vii) of the 1995
Senior Notes Indenture or (y) utilizes any of the availability for
"Indebtedness" (as so defined) permitted to be incurred under Section 4.03(b)(x)
of the 1995 Senior Notes Indenture.
9.08 Investments. The Borrower will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Part
B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Wholly Owned Subsidiaries in
the Borrower and its Wholly Owned Subsidiaries, including Guarantees by the
Borrower or any of its Wholly Owned Subsidiaries of obligations of the
Borrower or any of its Wholly Owned Subsidiaries;
(e) Hedging Agreements, provided that when entering into any Hedging
Agreement that at the time has, or at any time in the future may give rise
to, any credit exposure, the aggregate credit exposure under all Hedging
Agreements (including the Hedging Agreement being entered into) shall not
exceed $1,000,000;
(f) Disposition Investments received in connection with any
Disposition permitted under Section 9.05 or any Disposition to which the
Lenders shall have consented in accordance with Section 12.03;
(g) Investments consisting of Acquisitions permitted under Section
9.05(d);
(h) Investments in an aggregate amount of up to but not exceeding
$100,000 during any fiscal year in 299 East 79th Street Associates L.P.;
and
(i) additional Investments up to but not exceeding $5,000,000 in the
aggregate.
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9.09 Restricted Payments. The Borrower will not, nor will it permit any of
its Subsidiaries to, declare or make any Restricted Payment at any time,
provided that, during any fiscal year (commencing with Excess Cash Flow for the
fiscal year ending December 31, 1997), the Borrower may make Restricted
Payments, subject to the satisfaction of each of the following conditions on the
date of such payment and after giving effect thereto:
(a) no Default shall have occurred and be continuing;
(b) the aggregate amount of such Restricted Payment is not in excess
of 50% of the cumulative sum of Excess Cash Flow for each of the complete
fiscal years during the period commencing on January 1, 1997 through and
including the last day of the most recently ended fiscal year (after
deducting from such 50% all previous Restricted Payments made under this
Section 9.09 and all Investments made on or before the date of such
Restricted Payment pursuant to Section 9.05(d)(iv)(A)(y);
(c) the Borrower shall have delivered to the Administrative Agent, at
least ten Business Days (but not more than twenty Business Days) prior to
the date of the proposed Restricted Payment, a certificate of a senior
financial officer of the Borrower setting forth computations in reasonable
detail demonstrating satisfaction of the foregoing conditions as at the
date of such certificate; and
(d) prior to, or concurrently with, the making of such Restricted
Payment, the Borrower shall prepay the Loans to the extent required under
Section 2.10(a).
In addition to the foregoing, the Borrower may redeem shares of preferred
stock issued by it after the date hereof from the proceeds of shares of common
stock issued by it after the date hereof, so long as the aggregate consideration
paid by it in respect of the redemption of such shares of preferred stock shall
not exceed an amount equal to 50% of the proceeds theretofore received by it in
respect of such shares of common stock.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrower.
9.10 Certain Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Leverage Ratio to
exceed the following respective ratios as at
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the last day of any fiscal quarter during any of the following respective
periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 1997 5.25 to 1
From September 30, 1997
through June 29, 1998 5.00 to 1
From June 30, 1998
through June 29, 1999 4.50 to 1
From June 30, 1999
through June 29, 2000 3.50 to 1
From June 30, 2000
and at all times thereafter 3.00 to 1
(b) Park Level Leverage Ratio. The Borrower will not permit the Park Level
Leverage Ratio for any of the Parks set forth below to exceed the following
respective ratios as at the last day of any fiscal quarter during any of the
following respective periods:
Period Ratio
------ -----
Elitch Great Water-
Gardens Escape World
------- ------ -----
From the Closing
Date through
June 29, 1998 9.00 to 1 4.00 to 1 3.50 to 1
From June 30,
1998 through
June 29, 1999 7.00 to 1 3.50 to 1 3.25 to 1
From June 30,
1999 through
June 29, 2000 5.00 to 1 3.00 to 1 3.00 to 1
From June 30, 2000
and at all times
thereafter 4.00 to 1 3.00 to 1 3.00 to 1
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For purposes hereof, the "Elitch Gardens Park" shall refer to the Park to be
acquired in the Elitch Gardens Acquisition, the "Great Escape Park" shall refer
to the Park to be acquired in the Great Escape Acquisition and the "Waterworld
Parks" shall refer to the Parks to be acquired in the Concord Acquisition and
FRE Acquisition.
(c) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio to be less than the following respective ratios as at the last
day of any fiscal quarter during any of the following respective periods:
Period Ratio
------ -----
From the Closing Date
through June 29, 1998 2.00 to 1
From June 30, 1998
through June 29, 1999 2.25 to 1
From June 30, 1999
through June 29, 2000 2.50 to 1
From June 30, 2000
and at all times thereafter 3.00 to 1
(d) Debt Service Coverage Ratio. The Borrower will not permit the Debt
Service Coverage Ratio to be less than the following respective ratios as at the
last day of any fiscal quarter during any of the following respective periods:
Period Ratio
------ -----
From the Closing Date
through June 29, 1998 2.00 to 1
From June 30, 1998
and at all times thereafter 1.50 to 1
(e) Fixed Charges Coverage Ratio. The Borrower will not permit the Fixed
Charges Ratio to be less than 1.05 as at the last day of any fiscal quarter
ending on or after June 30, 1999.
9.11 Subordinated Indebtedness. The Borrower may, after the date of this
Agreement, incur additional Indebtedness (i) for which the Borrower is directly
and primarily liable, (ii) that is subordinated to the obligations of the
Borrower to pay principal of and interest on the Loans, Notes, Reimbursement
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Obligations and other obligations hereunder on terms of subordination
satisfactory to the Majority Lenders, and pursuant to documentation containing
other terms (including, without limitation, interest, amortization, mandatory
prepayments, covenants and events of default) in form and substance satisfactory
to the Majority Lenders), (iii) in respect of which none of its Subsidiaries is
contingently or otherwise obligated, (iv) if at the time of issuance of such
Indebtedness and after giving effect thereto and to the application of the
proceeds thereof, the Borrower shall be in compliance with Section 9.10 (the
determination of compliance with such ratios to be calculated on a pro forma
basis as if such Indebtedness was incurred, and the proceeds thereof were so
applied, in each case, at the beginning of such period, and the Administrative
Agent shall have received a certificate of a senior financial officer of the
Borrower to such effect setting forth in reasonable detail the computations
necessary to determine such compliance) and (v) if immediately prior thereto and
after giving effect to the incurrence thereof, no Default shall have occurred
and be continuing, and the Administrative Agent shall have received a
certificate of a senior financial officer of the Borrower to such effect.
9.12 Lines of Business. The Borrower will not, nor will it permit any of
its Subsidiaries to, engage to any substantial extent in any line or lines of
business activity other than the business of owning and operating amusement and
attraction parks, and businesses related, ancillary or complementary thereto.
9.13 Transactions with Affiliates. Except as expressly permitted by this
Agreement, the Borrower will not, nor will it permit any of its Subsidiaries to,
directly or indirectly: (a) make any Investment in an Affiliate; (b) transfer,
sell, lease, assign or otherwise dispose of any Property to an Affiliate; (c)
merge into or consolidate with or purchase or acquire Property from an
Affiliate; or (d) enter into any other transaction directly or indirectly with
or for the benefit of an Affiliate (including, without limitation, Guarantees
and assumptions of obligations of an Affiliate); provided that (x) the Borrower
may sell shares of stock to Affiliates for consideration equal to the fair
market value thereof (as determined by the Board of Directors of the Borrower)
and may issue New Senior Notes or Subordinated Indebtedness to any Affiliate in
accordance with the provision of this Agreement, (y) any Affiliate who is an
individual may serve as a director, officer or employee of the Borrower or any
of its Subsidiaries and receive reasonable compensation for his or her services
in
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such capacity and (z) the Borrower and its Subsidiaries may enter into
transactions (other than extensions of credit by the Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of inventory and other
Property in the ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as advantageous to the
Borrower and its Subsidiaries as the monetary or business consideration that
would obtain in a comparable transaction with a Person not an Affiliate.
9.14 Use of Proceeds, Etc. The Borrower will use the proceeds of the Loans
hereunder as follows:
(a) the Borrower will use the proceeds of Revolving Credit Loans
solely to refinance amounts outstanding under the Existing Credit Agreement
and to provide funds for the working capital and other general corporate
needs of the Borrower and its Subsidiaries (including, without limitation,
off-season operating expenses and the fees and expenses related to this
Agreement);
(b) the Borrower will use the proceeds of Facility A Term Loans solely
to finance Capital Expenditures (or to reimburse the Borrower for Capital
Expenditures previously made by the Borrower, so long as such Loans are
made within the Applicable Reimbursement Period, as defined below)
consisting of the purchase by the Borrower of items of equipment to be used
in the ordinary course of business of the Borrower and its Subsidiaries,
the equipment being financed in whole or in part with the proceeds of such
Loans to have a minimum purchase price of $1,000,000 and to have a minimum
useful life longer than the final maturity hereunder of such Loans; and
(c) the Borrower will use the proceeds of Facility B Term Loans solely
as follows:
(i) to finance the acquisition of Property consisting of fixed
assets and real estate in connection with the purchase of Parks by the
Borrower, the Property being financed in whole or in part with the
proceeds of such Loans to have a minimum purchase price of $1,000,000,
a minimum useful life longer than the final maturity hereunder of such
Loan and a value in excess of the amount of such Loans (as such value
is allocated or specified in the respective Acquisition
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Agreement pursuant to which such Property is being acquired), or
(ii) to finance Capital Expenditures (or to reimburse the
Borrower for Capital Expenditures previously made by the Borrower, so
long as such Loans are made within the Applicable Reimbursement
Period, as defined below) consisting of improvements to Parks acquired
by the Borrower as contemplated by clause (i) above, the improvements
being financed in whole or in part with the proceeds of such Loans to
have a minimum purchase price of $1,000,000 and to have a minimum
useful life longer than the final maturity hereunder of such Loans,
provided that no more than $58,000,000 of the Facility B Term Loan
Commitments may be utilized in connection with the acquisition of Parks,
and no more than $2,000,000 of the Facility B Term Loan Commitments may be
utilized in connection with the financing of improvements, as described in
this clause (c),
in each case in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulations G, T, U and X and the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder. provided that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
Each purchase of equipment by the Borrower described in paragraph (b)
above, and each acquisition of Property described in paragraph (c) above, shall
be consummated by the Borrower in such manner so that the Borrower will own the
respective equipment or Property acquired in such transaction. To the extent any
such equipment is to be utilized at a Park owned by a Subsidiary of the
Borrower, the Borrower shall make such equipment available to such Subsidiary by
entering into a lease, in form and substance satisfactory to the Administrative
Agent and the Arranger, covering such equipment. Following any such transaction,
the Borrower will not transfer any such equipment or Property to any of its
Subsidiaries.
For purposes hereof, the "Applicable Reimbursement Period" means, in the
case of any Loan, the period 180 days after the acquisition, addition or
improvement by the Borrower that constitutes the respective Capital Expenditure
to be financed with the proceeds of such Loan.
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9.15 Certain Further Assurances.
(a) Subsidiary Guarantors. The Borrower will take such action, and will
cause each of its Subsidiaries (other than Inactive Subsidiaries, unless such
Inactive Subsidiary is also a "Note Guarantor" under the 1995 Senior Notes
Indenture) to take such action, from time to time as shall be necessary to
ensure that all Subsidiaries of the Borrower are "Subsidiary Guarantors"
hereunder. Without limiting the generality of the foregoing, in the event that
the Borrower or any of its Subsidiaries shall form or acquire any new Subsidiary
that shall constitute a Subsidiary hereunder (or in the event that any Inactive
Subsidiary shall cease to be an Inactive Subsidiary), the Borrower and its
Subsidiaries will cause such new Subsidiary (or formerly Inactive Subsidiary) to
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing Party"
under the Revolving Credit Security Agreement pursuant to a Guarantee
Assumption Agreement,
(ii) cause such Subsidiary to take such action (including, without
limitation, delivering such shares of stock and executing and delivering
such Uniform Commercial Code financing statements) as shall be necessary to
create and perfect valid and enforceable first priority Liens on
substantially all of the personal Property of such Subsidiary as collateral
security for the obligations of such Subsidiary hereunder in respect of the
Revolving Credit Loans, and
(iii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 7.01 on the Closing Date or
as the Administrative Agent shall have reasonably requested.
(b) Ownership of Subsidiaries. The Borrower will, and will cause each of
its Subsidiaries, to, take such action from time to time as shall be necessary
to ensure that each of the Subsidiaries owned by it on the date hereof (other
than Inactive Subsidiaries) remains a Wholly Owned Subsidiary, and that all
shares of capital stock of each class of any Subsidiary (other than Inactive
Subsidiaries) formed or acquired by it after the date hereof will be pledged by
the Obligors pursuant to the Revolving Credit Agreement (or, in the case of any
such shares of stock owned by any Person other than an Obligor, pursuant to a
separate pledge agreement in form and substance satisfactory to the
Administrative Agent). In the event that any additional
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shares of stock shall be issued by any Subsidiary (other than Inactive
Subsidiaries), each Obligor holding any such shares of stock agrees (and agrees
to cause each other holder of any such shares of stock) forthwith to deliver to
the Administrative Agent pursuant to the Revolving Credit Security Agreement
(or, in the case of any holder other than an Obligor, pursuant to a separate
pledge agreement in form and substance satisfactory to the Administrative Agent)
the certificates evidencing such shares of stock, accompanied by undated stock
powers executed in blank and to take such other action (and cause such other
holder(s) to take such other action) as the Administrative Agent shall request
to perfect the security interest created therein pursuant to the Revolving
Credit Security Agreement (and such separate pledge agreement, as the case may
be).
(c) Certain Restrictions. The Borrower will not permit any of its
Subsidiaries to enter into, after the date hereof, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property, other than any such prohibition or restraint (i) set
forth in any agreement providing for the disposition of Property (so long as
such prohibition or restraint relates only to such Property to be disposed of)
or (ii) set forth in any of the Loan Documents.
(d) Revolving Credit Mortgages. In the event that an Event of Default shall
have occurred and be continuing, in addition to the rights and remedies provided
for in Section 10 and in the Security Documents, the Borrower will cause each of
its Subsidiaries, upon request therefor by the Administrative Agent or by the
Majority Lenders through the Administrative Agent, to execute and deliver to the
Administrative Agent one or more Mortgages covering all of their respective real
property (or such parcels thereof as shall be specified in such request), as
security for the obligations of the Subsidiary Guarantors hereunder in respect
of the Revolving Credit Loans, in each case duly executed and delivered (and,
where appropriate, acknowledged) by Persons satisfactory to the Administrative
Agent in recordable form, in form and substance satisfactory to the
Administrative Agent. In addition, in such event, the Borrower shall pay to the
respective title companies an amount equal to the recording and stamp taxes
payable in connection with recording such Mortgages in the appropriate county
land offices and shall deliver such proof of corporate action, incumbency of
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officers, opinions of counsel and other documents as is consistent with those
required to be delivered by each Obligor pursuant to Section 7.02 on the
occasion of any borrowing of Facility A or Facility B Term Loans hereunder or as
the Administrative Agent shall have reasonably requested.
(e) Modifications to 1995 Senior Notes Indenture. In the event that the
1995 Senior Notes Indenture shall at any time after the date hereof be modified
either
(i) to permit the Subsidiary Guarantors to Guarantee all of the
obligations of the Borrower hereunder in respect of the Term Loans (or to
increase the amount of the Term Loans hereunder that may be permissibly
Guaranteed by them) or
(ii) to permit the Facility A or Facility B Term Loans to be secured
by Property of the Obligors other than by the respective Property or
equipment purchased with the proceeds of such Loans,
then the Borrower will, and will cause each of its Subsidiaries to, execute and
deliver such amendments to this Agreement (and such security agreements,
mortgages and other instruments) in order that, to the maximum extent
permissible and in a manner satisfactory to the Administrative Agent, advantage
is taken of such modified provisions of the 1995 Senior Notes Indenture.
9.16 Modifications of Certain Documents. The Borrower will not consent to
any modification, supplement or waiver of
(a) any of the provisions of any agreement, instrument or other
document evidencing or relating to Subordinated Indebtedness or the
Allocation Agreement, or
(b) any provision of the 1995 Senior Notes Indenture, any agreement
evidencing or relating to any New Senior Notes, any Lease, any Initial
Acquisition Agreement (or, after the execution and delivery thereof, any
Subsequent Acquisition Agreement) if (in the case of this clause (b)) such
modification, supplement or waiver would have a material adverse effect
upon the Lenders or the Administrative Agent,
without in each case the prior consent of the Administrative Agent (with the
approval of the Majority Lenders).
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9.17 Prepayment of Certain Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, the 1995 Senior Notes, any New Senior Notes or
any Subordinated Indebtedness, except for regularly scheduled payments,
prepayments or redemptions of principal and interest in respect thereof required
pursuant to the 1995 Senior Notes Indentures, or pursuant to the instruments
evidencing the New Senior Notes such Subordinated Indebtedness, as the case may
be. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit
the Borrower from redeeming or retiring up to an aggregate principal amount of
$30,000,000 of the 1995 Senior Notes with the proceeds of the issuance of equity
capital by the Borrower after the date hereof, or from effecting any exchange of
New Senior Notes for 1995 Senior Notes (or refinancing 1995 Senior Notes with
the proceeds of New Senior Notes) in accordance with the provisions of Section
9.07(e).
Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) the Borrower shall default in the payment when due (whether at
stated maturity or at mandatory or optional prepayment) of any principal of
any Loan or Reimbursement Obligation, or shall default for three or more
Business Days in the payment when due of any interest on any Loan or any
fee or any other amount payable by it hereunder or under any other Loan
Document;
(b) any representation, warranty or certification made or deemed made
herein or in any other Loan Document (or in any modification or supplement
hereto or thereto) by any Obligor, or any certificate furnished to any
Lender or the Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the time made
or furnished in any material respect; or any representation or warranty
made in any Acquisition Agreement shall prove to have been false or
misleading as of the time made or furnished, in any such case that would
(either individually or in the aggregate) materially adversely affect the
operations of any Park or have a Material Adverse Effect;
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(c) the Borrower shall default in the performance of any of its
obligations under any of Sections 9.02(a), 9.05, 9.06, 9.07, 9.08, 9.09,
9.10, 9.11, 9.13, 9.14, 9.15, 9.16 or 9.17 or any Obligor shall default in
the performance of any of its obligations under Section 4.02 of the
Revolving Credit Security Agreement or of any Equipment Security Agreement;
(d) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a) or (c) of this Section 10) or any other Loan
Document and such failure shall continue unremedied for a period of 30 days
after notice thereof to the Borrower by the Administrative Agent or any
Lender (through the Administrative Agent);
(e) the Borrower or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $5,000,000 or more; or any Obligor shall default
in the payment when due of any amount aggregating $5,000,000 or more under
any Hedging Agreement;
(f) any event specified in any note, agreement, indenture or other
document evidencing or relating to any other Indebtedness aggregating
$5,000,000 or more of any Obligor shall occur if the effect of such event
is to cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to
become due, or to be prepaid in full (whether by redemption, purchase,
offer to purchase or otherwise), prior to its stated maturity or to have
the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof; or any event specified in any Hedging Agreement shall occur if the
effect of such event is to cause, or (with the giving of any notice or the
lapse of time or both) to permit, termination or liquidation payment or
payments aggregating $5,000,000 or more to become due;
(g) a proceeding or case shall be commenced, without the application
or consent of the Borrower or any of its Subsidiaries, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a
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receiver, custodian, trustee, examiner, liquidator or the like of the
Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of the Borrower or such
Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an
order for relief against the Borrower or any of its Subsidiaries shall be
entered in an involuntary case under the Bankruptcy Code;
(h) the Borrower or any of its Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or (vi) take any corporate action for the
purpose of effecting any of the foregoing;
(i) the Borrower or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become
due;
(j) a final judgment or judgments for the payment of money of
$1,000,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance) or of $10,000,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Borrower or any of its Subsidiaries and the same shall not be discharged
(or provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of entry
thereof and the Borrower or the relevant Subsidiary shall not, within such
period of 30 days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof to
be stayed during such appeal;
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(k) an event or condition specified in Section 9.02(c) shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of
such event or condition, together with all other such events or conditions,
the Borrower or any ERISA Affiliate shall incur or in the opinion of the
Majority Lenders shall be reasonably likely to incur a liability to a Plan,
a Multiemployer Plan or the PBGC (or any combination of the foregoing)
that, in the determination of the Majority Lenders, would (either
individually or in the aggregate) have a Material Adverse Effect;
(l) there shall have been asserted against the Borrower or any of its
Subsidiaries an Environmental Claim that, in the judgment of the Majority
Lenders, is reasonably likely to be determined adversely to the Borrower or
any of its Subsidiaries, and the amount thereof (either individually or in
the aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such amount is payable by the Borrower or any of its
Subsidiaries but after deducting any portion thereof that is reasonably
expected to be paid by other creditworthy Persons liable in whole or in
part therefor);
(m) any one or more of the following shall occur and be continuing:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act")), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the
voting stock of the Borrower; provided that the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the
aggregate a lesser percentage of the voting stock of the Borrower than
such other person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Borrower;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period
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constituted the Board of Directors of the Borrower (together with any
new directors whose election by such Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by
a vote of a majority of the Borrower's directors then still in office
who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Borrower's directors
then in office;
(iii) any change in control with respect to the Borrower (or
similar event, however denominated) shall occur under and as defined
in any indenture or other agreement in respect of Indebtedness in an
aggregate principal amount of at least $2,000,000 to which the
Borrower is a party; or
(iv) both Kieran E. Burke and Gary Story shall cease to be
actively involved in the day-to-day management and operation of the
Borrower and its Subsidiaries (unless Persons with substantial
knowledge and experience in the amusement and attraction park industry
reasonably acceptable to the Majority Lenders have been appointed to
replace one or both of them within 180 days thereof); or
(n) the Liens created by the Security Documents shall at any time not
constitute valid and perfected Liens on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than Liens
permitted under Section 9.06 or under the respective Security Documents),
or, except for expiration in accordance with its terms, any of the Security
Documents shall for whatever reason be terminated or cease to be in full
force and effect, or the enforceability thereof shall be contested by any
Obligor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (g) or (h) of this Section 10 with respect to any Obligor, the
Administrative Agent may (and, if requested by the Majority Lenders, shall), by
notice to the Borrower, terminate the Commitments and/or declare the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without
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limitation, any amounts payable under Section 5.05 or 5.06) to be forthwith due
and payable, whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor; and (2) in the case of the occurrence
of an Event of Default referred to in clause (g) or (h) of this Section 10 with
respect to any Obligor, the Commitments shall automatically be terminated and
the principal amount then outstanding of, and the accrued interest on, the
Loans, the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 or 5.06) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
In addition, upon the occurrence and during the continuance of any Event of
Default (if the Administrative Agent has declared the principal amount then
outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Borrower hereunder and under the Revolving Credit
Notes to be due and payable), the Borrower agrees that it shall, if requested by
the Administrative Agent or the Majority Lenders through the Administrative
Agent (and, in the case of any Event of Default referred to in clause (g) or (h)
of this Section 10 with respect to any Obligor, forthwith, without any demand or
the taking of any other action by the Administrative Agent or any Lender)
provide cover for the Letter of Credit Liabilities by paying to the
Administrative Agent immediately available funds in an amount equal to the then
aggregate undrawn face amount of all Letters of Credit, which funds shall be
held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
Section 11. The Administrative Agent and Arranger.
11.01 Appointment, Powers and Immunities. Each Lender hereby appoints and
authorizes the Administrative Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
11.05 and the first sentence of Section 11.06 shall include reference to its
affiliates and its
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own and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Loan Documents, and shall not
by reason of this Agreement or any other Loan Document be a trustee for any
Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Loan Document, or in any certificate or other document referred
to or provided for in, or received by any of them under, this Agreement or
any other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or
any other Loan Document or any other document referred to or provided for
herein or therein or for any failure by the Borrower or any other Person to
perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Loan Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or
willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Borrower
to such assignment or transfer (to the extent required by Section 12.06(b)).
11.02 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
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cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders or, if provided herein, in accordance with the instructions given by the
Majority Revolving Credit Lenders, the Majority Facility A Lenders, the Majority
Facility B Lenders or all of the Lenders as is required in such circumstance,
and such instructions of such Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07) take such action with
respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders, the Majority Facility A
Lenders or the Majority Facility B Lenders, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Majority Lenders, the Majority
Revolving Credit Lenders, the Majority Facility A Lenders, the Majority Facility
B Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitments and the Loans
made by it, LCPI (and any successor acting as Administrative Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. LCPI (and any successor acting as Administrative Agent) and its
affiliates
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may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in and generally engage in any kind of banking,
trust or other business with the Obligors (and any of their Subsidiaries or
Affiliates) as if it were not acting as the Administrative Agent, and LCPI and
its affiliates (and any such successor) and its affiliates may accept fees and
other consideration from the Obligors for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the Administrative
Agent and the Arranger (to the extent not reimbursed under Section 12.04, but
without limiting the obligations of the Borrower under Section 12.04) ratably in
accordance with the aggregate principal amount of the Loans and Reimbursement
Obligations held by the Lenders (or, if no Loans or Reimbursement Obligations
are at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent or the Arranger (including by any Lender)
arising out of or by reason of any investigation in or in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that the Borrower is obligated to pay under Section 12.04, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
11.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on the Administrative
Agent, the Arranger or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or
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under any other Loan Document. Neither the Administrative Agent nor the Arranger
shall be required to keep itself informed as to the performance or observance by
any Obligor of this Agreement or any of the other Loan Documents or any other
document referred to or provided for herein or therein or to inspect the
Properties or books of the Borrower or any of its Subsidiaries. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent hereunder or under the
Security Documents, neither the Administrative Agent nor the Arranger shall have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent, the Arranger or any of their
respective affiliates.
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall, after consultation with the
Borrower, have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New
York with a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the
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retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent.
11.09 Consents under Other Loan Documents. Except as otherwise provided in
Section 12.03 with respect to this Agreement, the Administrative Agent may, with
the prior consent of the Majority Lenders (but not otherwise), consent to any
modification, supplement or waiver under any of the Loan Documents, provided
that, without the prior consent of each Lender, the Administrative Agent shall
not (except as provided herein or in the Security Documents) release any
collateral or otherwise terminate any Lien under any Security Document providing
for collateral security, agree to additional obligations being secured by such
collateral security (unless the Lien for such additional obligations shall be
junior to the Lien in favor of the other obligations secured by such Security
Document, in which event the Administrative Agent may consent to such junior
Lien provided that it obtains the consent of the Majority Lenders thereto),
alter the relative priorities of the obligations entitled to the benefits of the
Liens created under the Security Documents, except that no such consent shall be
required, and the Administrative Agent is hereby authorized, to release any Lien
covering Property that is the subject of either a disposition of Property
permitted hereunder or a disposition to which the Majority Lenders have
consented.
11.10 Arranger. Except as provided in this Section 11, and in Section
12.06(b), the Arranger shall not have any rights or obligations under this
Agreement or in connection with the syndication of the Commitments hereunder,
other than in its capacity as a "Lender" hereunder.
Section 12. Miscellaneous.
12.01 Notices. All notices, requests and other communications provided for
herein and in the Security Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy), delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof (below the name of the Borrower, in the case of any
Subsidiary Guarantor), or, as to
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any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
12.02 Waiver. No failure on the part of the Administrative Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.03 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Borrower and the Majority Lenders, or
by the Borrower and the Administrative Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by the
Majority Lenders or by the Administrative Agent acting with the consent of the
Majority Lenders; provided that:
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders: (i) increase, or extend the
term of any of the Commitments, or extend the time or waive any requirement
for the reduction or termination of any of the Commitments, (ii) extend the
date fixed for the payment of principal of or interest on any Loan or
Reimbursement Obligation or any fee hereunder, (iii) reduce the amount of
any such payment of principal or Reimbursement Obligation, (iv) reduce the
rate at which interest is payable thereon or any fee is payable hereunder,
(v) alter the manner in which payments or prepayments of principal,
interest or other amounts hereunder shall be applied as between the Lenders
or Types, Classes or Sub-Series of Loans, (vi) alter the terms of this
Section 12.03, (vii) modify the definition of the term "Majority Lenders",
"Majority Revolving Credit Lenders", "Majority Facility A Lenders" or
"Majority Facility B Lenders", or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify
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any provision hereof, (viii) release any Subsidiary Guarantor from any of
its guarantee obligations under Section 6, or (ix) waive any of the
conditions precedent set forth in Section 7.01 or 7.02;
(b) any modification or supplement of Section 11, or of any of the
rights or duties of the Administrative Agent hereunder, shall require the
consent of the Administrative Agent; and
(c) any modification or supplement of Section 6 shall require the
consent of each Subsidiary Guarantor.
12.04 Expenses, Etc. The Borrower agrees to pay or reimburse each of the
Lenders, the Administrative Agent and the Arranger for: (a) all reasonable
out-of-pocket costs and expenses of the Administrative Agent, and the reasonable
fees and expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel
to the Arranger, in connection with (i) the negotiation, preparation, execution
and delivery of this Agreement and the other Loan Documents and the extensions
of credit hereunder and (ii) the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Loan Documents (whether or not consummated); (b) all reasonable out-of-pocket
costs and expenses of the Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 12.04; (c) all
transfer, stamp, mortgage recording, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein; and (d) all
costs, expenses and other charges in respect of title insurance procured with
respect to the Liens created pursuant to the Mortgages.
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The Borrower hereby agrees to indemnify the Administrative Agent, the
Arranger and each Lender and their respective directors, officers, employees,
attorneys and agents (each, an "indemnified person") from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the Administrative Agent or
the Arranger to any Lender, whether or not the Administrative Agent, the
Arranger or any Lender is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to the extensions of
credit hereunder or any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the extensions of credit hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified). In that connection, the Borrower will not be required
to reimburse the indemnified persons for more than one counsel in any
jurisdiction, except to the extent that a particular indemnified person may have
defenses that are distinct, or in conflict with, the defenses of other
indemnified persons.
Without limiting the generality of the provisions of the foregoing
paragraph, the Borrower will indemnify the Administrative Agent, the Arranger
and each Lender from, and hold the Administrative Agent, the Arranger and each
Lender harmless against, any losses, liabilities, claims, damages or expenses
described in the preceding paragraph (including any Lien filed against any
Property covered by the Mortgages in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Borrower or any of
its Subsidiaries (or any predecessor in interest to the Borrower or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Borrower or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or from any such site or facility, excluding any such
Release or threatened Release that shall occur during any period when the
Administrative Agent or any Lender shall be in possession of any
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such site or facility following the exercise by the Administrative Agent or any
Lender of any of its rights and remedies hereunder or under any of the Security
Documents, but including any such Release or threatened Release occurring during
such period that is a continuation of conditions previously in existence, or of
practices employed by the Borrower and its Subsidiaries, at such site or
facility.
12.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the
Administrative Agent and the Arranger.
(b) Each Lender may assign any of its Loans, its Notes and its Commitments
and its Letter of Credit Interest (but only with the consent of the
Administrative Agent, the Arranger, the Issuing Lender and the Borrower, which
consents shall not be unreasonably withheld or delayed); provided that
(i) no such consent by the Borrower, the Administrative Agent or the
Arranger shall be required in the case of any assignment to another Lender;
(ii) no such consent by the Borrower shall be required in the case of
any assignment by the Arranger in its capacity as a "Lender" hereunder on
or prior to the date 90 days after the Closing Date;
(iii) except to the extent the Borrower and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $5,000,000; and
(iv) each such assignment by a Lender of any Loans, Letter of Credit
Interest or Commitments of any Class or Sub-Series shall be made in such
manner so that the same portion of its Loans, Letter of Credit Interest or
Commitments of each other Class and Sub-Series is assigned to the
respective assignee.
Upon execution and delivery by the assignee to the Borrower, the
Administrative Agent, the Arranger and (if applicable) the
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Issuing Lender of an instrument in writing pursuant to which such assignee
agrees to become a "Lender" hereunder (if not already a Lender) having the
Commitments, Loans and Reimbursement Obligations specified in such instrument,
and upon consent thereto by the Borrower, the Administrative Agent, the Arranger
and the Issuing Lender to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Borrower,
the Administrative Agent, the Arranger and the Issuing Lender, the obligations,
rights and benefits of a Lender hereunder holding the Commitments, Loans and
Reimbursement Obligations (or portions thereof) assigned to it (in addition to
the Commitments, Loans and Reimbursement Obligations, if any, theretofore held
by such assignee) and the assigning Lender shall, to the extent of such
assignment, be released from the Commitments (or portions thereof) so assigned.
Upon each such assignment the assigning Lender shall pay the Administrative
Agent an assignment fee of $2,000.
(c) A Lender may sell or agree to sell to one or more other Persons
(each a "Participant") a participation in all or any part of any Loans or
Letter of Credit Interest held by it, or in its Commitments, provided that
such Participant shall not have any rights or obligations under this
Agreement or any Note or any other Loan Document (the Participant's rights
against such Lender in respect of such participation to be those set forth
in the agreements executed by such Lender in favor of the Participant). All
amounts payable by the Borrower to any Lender under Section 5 in respect of
Loans or Letter of Credit Interest held by it and its Commitments shall be
determined as if such Lender had not sold or agreed to sell any
participations in such Loans, Letter of Credit Interest and Commitments,
and as if such Lender were funding each of such Loans, Letter of Credit
Interest and Commitments in the same way that it is funding the portion of
such Loans, Letter of Credit Interest Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender
may agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's
related Commitment or extend the amount or date of any scheduled reduction
of such Commitment pursuant to Section 2.04, (ii) extend the date fixed for
the payment of principal of or interest on the related Loan or Loans or
Reimbursement Obligation or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal or
Reimbursement Obligation or (iv) reduce the rate at which interest is
payable thereon, or any fee hereunder payable to the
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Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 12.06, any Lender may (without notice to
the Borrower, the Administrative Agent, the Arranger or any other Lender and
without payment of any fee) assign and pledge all or any portion of its Loans
and its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank, and
such Loans and Notes shall be fully transferrable as provided therein. No such
assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Borrower or any of
its Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants), subject,
however, to the provisions of Section 12.12.
(f) Anything in this Section 12.06 to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan or Letter of Credit
Interest held by it hereunder to the Borrower or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
12.07 Survival. The obligations of the Borrower under Sections 5.01, 5.05,
5.06, 5.07 and 12.04, the obligations of each Subsidiary Guarantor under Section
6.03, and the obligations of the Lenders under Section 11.05, shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall survive the making of such representation and warranty, and no
Lender shall be deemed to have waived, by reason of making any extension of
credit hereunder, any Default that may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding that such
Lender or the Administrative Agent may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such extension of credit was made.
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12.08 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.09 Governing Law; Submission to Jurisdiction. This Agreement and the
Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Obligor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12.10 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE ADMINISTRATIVE AGENT
AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.11 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.12 Confidentiality. Each Lender and the Administrative Agent agrees (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower pursuant to this Agreement
that is identified by the Borrower as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, provided that nothing
herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of this
Section 12.12), (ii) to the extent required by statute, rule, regulation or
judicial
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process, (iii) to counsel for any of the Lenders or the Administrative Agent,
(iv) to bank examiners (or any other regulatory authority having jurisdiction
over any Lender or the Administrative Agent), or to auditors or accountants, (v)
to the Administrative Agent or any other Lender, (vi) in connection with any
litigation to which any one or more of the Lenders or the Administrative Agent
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (vii) to a subsidiary or affiliate
of such Lender or (viii) to any assignee or participant (or prospective assignee
or participant) so long as such assignee or participant (or prospective assignee
or participant) first executes and delivers to the respective Lender a
Confidentiality Agreement substantially in the form of Exhibit G (or executes
and delivers to such Lender an acknowledgement to the effect that it is bound by
the provisions of this Section 12.12, which acknowledgement may be included as
part of the respective assignment or participation agreement pursuant to which
such assignee or participant acquires an interest in the Loans hereunder);
provided, further, that in no event shall any Lender or the Administrative Agent
be obligated or required to return any materials furnished by the Borrower.
The obligations of each Lender under this Section 12.12 shall supersede and
replace the obligations of such Lender under the confidentiality letter in
respect of this financing signed and delivered by such Lender to the Borrower
prior to the date hereof; in addition, the obligations of any assignee that has
executed a Confidentiality Agreement in the form of Exhibit G shall be
superseded by this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
PREMIER PARKS INC.
By /s/ James F. Dannhauser
-------------------------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
Address for Notices:
122 East 42nd Street, 49th Floor
New York, New York 10168
Attention: James Dannhauser
Telecopier No.: 212-949-6203
Telephone No.: 212-599-4693
with a copy to
James M. Coughlin, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022
Telecopier No.: 212-802-5941
Telephone No.: 212-702-5819
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SUBSIDIARY GUARANTORS
FUNTIME PARKS, INC. TIERCO MARYLAND INC.
By /s/ James F. Dannhauser By /s/ James F. Dannhauser
------------------------------- ---------------------------------
Name: James F. Dannhauser Name: James F. Dannhauser
Title: Chief Financial Officer Title: Chief Financial Officer
TIERCO WATER PARK, INC. FRONTIER CITY PROPERTIES, INC.
By /s/ James F. Dannhauser By /s/ James F. Dannhauser
------------------------------- ---------------------------------
Name: James F. Dannhauser Name: James F. Dannhauser
Title: Chief Financial Officer Title: Chief Financial Officer
WYANDOT LAKE, INC. FUNTIME, INC.
By /s/ James F. Dannhauser By /s/ James F. Dannhauser
------------------------------- ---------------------------------
Name: James F. Dannhauser Name: James F. Dannhauser
Title: Chief Financial Officer Title: Chief Financial Officer
DARIEN LAKE THEME PARK AND FRONTIER CITY PARTNERS,
CAMPING RESORT, INC. LIMITED PARTNERSHIP
By Frontier City Properties,
Inc., its general partner
By /s/ James F. Dannhauser By /s/ James F. Dannhauser
------------------------------- ---------------------------------
Name: James F. Dannhauser Name: James F. Dannhauser
Title: Chief Financial Officer Title: Chief Financial Officer
D. L. HOLDINGS, INC.
By /s/ James F. Dannhauser
---------------------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
Credit Agreement
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LENDERS
-------
Revolving Credit Commitment LEHMAN COMMERCIAL PAPER INC.
- ---------------------------
$30,000,000
Facility A
Term Loan Commitment
- --------------------
$25,000,000
Facility B
Term Loan Commitment By /s/ Dennis J. Dee
- ------------------- -------------------------------------
$60,000,000 Name: Dennis J. Dee
Title: Authorized Signatory
Lending Office for all Loans:
Lehman Commercial Paper Inc.
200 Vesey Street, 10th Floor
New York, New York 10285
Address for Notices:
Lehman Commercial Paper Inc.
200 Vesey Street, 10th Floor
New York, New York 10285
Attention: Michele Swanson
Telecopier No.: 212-528-0819
Telephone No.: 212-526-0330
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LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
By /s/ Dennis J. Dee
--------------------------------------
Title: Authorized Signatory
Address for Notices to
Lehman Commercial Paper Inc.,
as Administrative Agent:
Lehman Commercial Paper Inc.
200 Vesey Street, 10th Floor
New York, New York 10285
Attention: Michele Swanson
Telecopier No.: 212-528-0819
Telephone No.: 212-526-0330
LEHMAN COMMERCIAL PAPER INC.,
as Arranger
By /s/ Dennis J. Dee
--------------------------------------
Title: Authorized Signatory
Credit Agreement
